Industrial Tribunals Northern Ireland Decisions

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Cite as: [2013] NIIT 350_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 350/12

CLAIMANT: Rolland David Sinton

RESPONDENT: Belfast City Council

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent and the claimant’s claim is therefore dismissed.

Constitution of Tribunal:

Chairman: Mr N Drennan QC

Members: Mr R Hanna

Mrs S Doran

Appearances:

The claimant was represented by Mr J McGuigan, Trade Union Official, of NIPSA.

The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by The Legal Services Department, of Belfast City Council.

Reasons

1.1 The claimant presented a claim to the tribunal on 17 February 2012, in which he made a claim of unfair dismissal and/or breach of contract arising out of his dismissal by the respondent from his conduct on or about 18 November 2011. The respondent presented a response to the tribunal on 26 March 2012, in which it denied liability for the claimant’s said claims. It was not disputed by the representatives of the parties that the claimant’s claim of breach of contract was already included within his claim of unfair dismissal and it was therefore only necessary for the tribunal to determine his said claim of unfair dismissal. The claimant, at the commencement of the hearing, confirmed that if the tribunal found that he had been unfairly dismissed, he was seeking the remedy of reinstatement and/or re-engagement. In view of the tribunal’s decision, as set out above, it was not necessary for the tribunal to further consider the issue of remedy, including the issue of reinstatement/re-engagement and/or compensation.

1.2 It was not disputed that the claimant was employed by the respondent from on or about 1 June 2003 until 8 November 2011. He was born on 24 February 1957 and, at the date of the termination of his employment with the respondent, the claimant was receiving, by way of earnings, £2,406.64, gross, per month and £1,718.00 net per month.

2.1 The tribunal heard oral evidence, on behalf of the respondent, from Mr Alister Joynes, Mrs Emma Dorman and Mr George Wright. The claimant also gave oral evidence to the tribunal.

Having considered the evidence given to the tribunal by the parties and their witnesses, as referred to above, the documents contained in the ‘trial bundle’, as amended, to which the tribunal was referred during the course of the hearing, together with the oral/written submissions by the representatives of the claimant and the respondent, the tribunal made the following findings of fact, as set out in the following sub-paragraphs, insofar as necessary and relevant for the determination of the claimant’s claims.

2.2 There was no dispute between the parties that the respondent had a disciplinary procedure, which was agreed with the trade unions/staff association and which procedure was applied by the respondent in relation to the matters, the subject-matter of these proceedings.

The following, insofar as relevant and material, were terms of the said disciplinary procedure:-

“6.0 Stage 3 – Further misconduct or gross misconduct –

Final Written Warning (lasting up to a maximum of two years)/demotion/disciplinary suspension (without pay – up to a maximum of two weeks)/dismissal

6.1 In the event of a further infringement of discipline occurring within the 12 month period of a written warning applying, or where an infringement can be considered as gross misconduct the circumstances will be subject to preliminary investigation by the line manager/supervisor in conjunction with the Departmental Business Support Officer/Manager, who will consult with the Council’s Human Resources Manager (Employee Relations) before any action is taken.

6.2 If the preliminary investigation establishes a potential charge of misconduct, and results in no satisfactory explanation, consideration will be given to paid suspension pending full investigation.

6.3 The full investigation of the case will be undertaken by an investigatory team appointed by the Head of Service/Director concerned. (This investigatory team will normally comprise a manager, other than the one who undertook the preliminary investigation, and the Departmental Business Support Officer/ Manager.)

6.4 If following investigation there is a disciplinary charge to be answered, the allegation will be put to the employee in writing and a hearing will be arranged. This letter will detail the right to representation by a trade union/staff association representative or a colleague. The matter will be heard by a disciplinary panel convened for the purpose – as follows:-

(a) in the event of the charge being against an officer below Head of Service level the disciplinary panel will comprise –

(i) the Director or Chief Officer of the Department concerned, or nominated Head of Service, or senior officer of at least Principal Officer grade; and

(ii) senior representative of Human Resources. Panel members will be senior in grade to the grade of the officer against whom the charge is made. The Department concerned will nominate a secretary to the disciplinary panel.

…

6.5 The decisions of the ‘officers’ disciplinary panel, including dismissal decisions, will be unanimous decisions.

…

6.9 The employee will be informed in writing of the outcome of the hearing and the letter will indicate as appropriate:-

(1) The decision of the disciplinary authority.

(2) That this is the third stage of the disciplinary procedure.

(3) The nature of the infringement.

(4) The disciplinary action being taken.

…

(6) The employee’s right of appeal against this action.

(7) To whom an appeal may be made.

(8) The time-limit within which an appeal may be lodged.

(9) If no action is to be taken.

…

8.0 Disclosure of Information

8.1 It is accepted that if the Council chooses to instigate disciplinary action against an employee, the onus is on the Council to show just cause and to provide full details of the allegations along with copies of investigatory notes and any other relevant or supporting documentation.

8.2 It is recognised by the Council and trade unions that the disciplinary process is best served by the mutual disclosure of documentation to be relied upon by each side at a hearing.

8.3 To this end the documentation to be relied upon at a hearing will be exchanged by each side on an agreed date which will normally be no later than five working days prior to the date of the hearing.

…

13.0 Suspension pending investigation

13.1 In the event of a potential gross misconduct being established as a result of a preliminary investigation, suspension may be applied by the appropriate authority pending a full investigation.

13.2 Such suspension, which will be with full pay, will be confirmed in writing.

The letter confirming suspension will detail the nature of the charge under investigation.

13.3 The Human Resources Section will be consulted, prior to any action being taken, and will give advice and support in all cases relating to suspension.

13.4 Normally suspension pending investigation should not last for a period of more than four working weeks without employee concerned and his/her representative being advised of the reasons.

13.5 Where a trade union/staff association representative has indicated an interest in such a case, the representative concerned will be provided with all relevant information concerning the suspension.

…

14.0 Appeals

…

14.3 Appeals against disciplinary panel decisions – dismissal

Where the employee wishes to appeal against a dismissal there will be a right of appeal to a Joint Appeals Board for which a constitution has been agreed between trade unions and management. Such appeals should be made in writing to the Head of Human Resources within 10 working days of the date of the issue of the disciplinary decision.

…

Appendix 2

Examples of gross misconduct

Gross misconduct is misconduct of such a nature that the Council is justified in no longer tolerating the continued employment of the employee.

Examples of offences of gross misconduct which, if committed by an employee of the Council, may lead to dismissal include:

- unauthorised removal of the Council’s property

…

Failure to comply with a reasonable instruction

Stealing from the Council, its members, members of staff or the public and other offences of dishonesty

Corrupt practices

…

Falsification of claims for payment, eg subsistence and expenses, sick pay, hours worked, overtime, bonus etc

…

Sharp practices or actions in conflict of interest with the Council

…

Misconduct in relation to official documents and improper disclosure to confidential information

…

This list is neither exclusive nor exhaustive and in addition there may be other offences of a similar gravity which would constitute gross misconduct

…

Appendix 4

JOINT APPEALS BOARD CONSTITUTION

1. Composition

The Joint Appeals Board shall consist of one Director or Head of Service of a Department other than that in which the disciplinary action has arisen; a full-time paid union official from a union other than that of which the appellant is a member; and one member from an independent panel whose members are jointly agreed by management and unions.

2. Chairperson

The independent person shall act as chairperson.

…

6. Hearing of the appeal

The Head of Human Resources shall notify all parties and convene the Board to hear the appeal within four weeks of receipt of the letter of appeal, unless altered by mutual agreement.

…

(b) At the appeal hearing members of management who are directly associated with the disciplinary action shall present to the Board the case of such action and shall at the time call any witnesses they consider relevant.

(c) The appellant and his/her representative (if any) shall be entitled to be present throughout the presentation of the case.

(d) When the management case has been completed the appellant or his/her representative shall present the appeal and may call any necessary witnesses. (Witnesses shall not be present other than when actually giving evidence. After a witness has given his evidence, he/she may, with the approval of the chairperson, be subject to cross-examination by the opposing representative.)

(e) Following the hearing the Board shall require the withdrawal of both parties to vacate and shall then consider a decision. It shall be the function of the chairperson to seek to obtain a majority decision. The Board may, if they consider it appropriate, substitute a less penalty.

7. Notification of decision

The Secretary shall notify in writing to management and the appellant the decision of the Appeals Board within five days, and shall be responsible for ensuring that the Board’s decision is implemented within the Council without delay.”

2.3 The claimant, at the date of his dismissal from the respondent (‘the Council’), on 19 November 2011, was employed by the Council in the position of Production Stage Manager at the Belfast Waterfront Hall and the Ulster Hall. In this role ‘the claimant was responsible for the co-ordination of all resources required for the delivery of essential technical services in support of events at both venues. He was responsible for the supervision of seven full-time technicians, one artiste liaison officer, one audio visual co-ordinator and a pool of casual staff (both stage crew and technicians)’. (See extract from Joint Appeal Board decision, dated 13 August 2012, to which further reference shall be made elsewhere in this decision.)

2.4 Following information received by the Council, to which further reference will be made elsewhere in this decision, the claimant was required, by letter dated 23 March 2011, to attend a preliminary investigatory interview under Stage 3 of the Council’s disciplinary procedures on 23 March 2011, to be conducted by Jacqui Owens, as investigating officer. The investigation was in relation to the following allegations, as set out in the letter, namely:-

“(1) A number of breaches of procurement processes.

(2) Neglect of duty, in that you are working for PLM Productions whilst Clockwise reports show you were in work for the Council.

(3) A number of breaches of the Council’s Code of Conduct.

(4) Neglect and absence of your managerial authority, in that an e-mail of 18 August 2010 to another member of staff (Phil McVeigh) you stated:-

‘I recommend you come in on Sunday for a few hours (Jedward) then take some time off on the sick … to save your holidays.’

The letter also stated:-

‘The purpose of the interview is to appraise you of the allegations. In addition, because these allegations have the potential to be viewed as gross misconduct in the Council’s disciplinary procedures and at this interview you will have the opportunity to provide an innocent explanation or any mitigating circumstances in respect of the allegations. Notes will be taken by a note taker during the meeting.

If it is determined, following the preliminary meeting, that there is (sic) a potential case of gross misconduct to be answered, a full and formal investigation into the allegations will take place.

Consideration will also be given to placing you on paid precautionary suspension while this investigation is undertaken.

You may of course be accompanied by a trade union representative or a colleague of your choice at this interview.

… .”

2.5 Following the investigatory interview, which was held on 23 March 2011, where the claimant was accompanied by a colleague, the claimant was informed of the details of the allegations, to which he was given an opportunity to reply, as set out in the detailed minutes, of the preliminary investigatory interview, the investigatory officer prepared a report relating to her preliminary investigation of the said allegations and recommended that ‘as a result of not providing any mitigation or reasonable explanation at the preliminary interview I recommend that further investigation is made into all of the allegations’. It was not disputed the minutes were an accurate record, albeit not verbatim, of what had taken place.

2.6 By letter dated 24 March 2011, Ms Owens, following consultation with the Corporate Human Resources Section of the Council, informed the claimant, after referring to the said allegations, as follows:-

“ … in view of the seriousness of these allegations and the potential for a charge of gross misconduct to be answered, I’ve placed you on paid precautionary suspension pending a full and formal investigation of this matter under Stage 3 of the Council’s disciplinary procedures.

I will stress that this suspension is not an assumption of guilt but is to facilitate further investigation only.

I would also advise that you should not enter any Council premises during the suspension without first seeking permission from your line manager.”

2.7 By letter dated 31 March 2011, Alan Noble, Business Manager – HR Quality & Management Support Development Department, wrote to the claimant reminding the claimant he was on precautionary paid suspension and stating:-

“It has come to our attention that you are currently communicating with external promoters and asking various questions relating to your employment with Belfast City Council.

I would remind you that whilst on suspension you are not permitted to make contact with anybody connected with the Waterfront/Ulster Halls. I would confirm that this includes all staff and any external promoters or customers.”

By letter dated 22 April 2011, Mr Noble again wrote to the claimant stating:-

“ … I am writing to you concerning your current paid precautionary suspension and to advise you that the investigation is still ongoing and as such your period of suspension will continue.

I would remind you that under the terms of the paid suspension you should not enter any Council premises without first seeking permission from your line manager.”

2.8 Disciplinary investigation were conducted with the claimant under Stage 3 of the Council’s disciplinary procedure on 15 April 2011, 10 June 2011 and 17 June 2011 by Mr A Noble and Ms Judith Owens, Operations Manager.

The claimant was represented at all these interviews by a trade union representative, Mr Harkness. Again detailed minutes were prepared in relation to each of the said interviews and the accuracy of the minutes was again not in dispute albeit it was accepted it was not a verbatim record.

Further investigation interviews were held by Mr A Noble and Ms Judith Owens with Carol Abel, Finance Officer, on 15 June 2011; Tim Husbands, Head of City Events and Venue, on 21 June 2011 and Brian Robinson, Cleaning, and Portering Team Leader (also owner of Stage Production Crew) on 24 June 2011. Again minutes of these interviews were prepared, the accuracy of which, in essence, was not challenged at the hearing of this matter, taking account of the fact that these were not intended to be verbatim minutes of the meetings.

2.9 The Stage 3 investigation was completed in or around August 2011 by the investigating officers, Mr A Noble and Ms Judith Owens, who prepared a report, following their disciplinary investigation and recommended that ‘taking everything into consideration it is the investigating officers’ opinion that all four allegations are substantiated, each allegation has the potential to be considered gross misconduct. On that basis, it is our recommendation that all four allegations are considered at a Stage 3 disciplinary hearing’. A disciplinary hearing was due to take place on 15 August 2011, but was postponed following a request for further documentation by the claimant’s trade union representative. Disciplinary hearings then took place on 19 October 2011, 25 October 2011, 4 November 2011 and 8 November 2011. At each of these disciplinary hearings, the claimant was represented by Mr Joe McGuigan, who was a trade union representative, and a colleague of the claimant. Stage 3 disciplinary hearings were conducted by Mr George Wright, Head of Facilities Management, and Ms Emma Dorman, Senior Human Resources Adviser.

2.10 At the outset of the first day of hearing, the claimant’s representative, Mr McGuigan, sought further information, in particular, a copy of a complaint letter which had been referred to at the investigation meeting on 15 April 2011. This letter was said to have started off the whole disciplinary process, but disclosure of which had been refused by the respondent on the grounds that the information in the letter was said to be commercially sensitive and legally privileged and could not be disclosed. It will be necessary to refer to this issue later in the decision; but, at that stage, the claimant’s representative, in essence, was informed that a complaint was received regarding procurement of crew, which was referred to the Audit Section of the respondent, which had then led to the matters, the subject-matter of the investigation and disciplinary hearing; but the letter itself was not part of the matters, the subject-matter of the investigation and disciplinary hearing and that the hearing would therefore proceed. At the disciplinary hearing on 19 October 2011, Judith Owens, read out in full [tribunal’s emphasis] to the disciplinary hearing the investigation report prepared by her and Mr Noble following the investigation hearings, as referred to above and which, following their recommendation, formed the basis for the disciplinary hearing. The report set out in considerable detail the four allegations, which had been the subject of the said investigation, which were the subject-matter of the letter dated 15 August 2011, informing the claimant of the Stage 3 disciplinary hearing; albeit, as set out above, the disciplinary hearing did not take place immediately due to the request for further documentation by the claimant’s trade union representative.

It is necessary to set out, in full, the said allegations, the subject-matter of the disciplinary hearing, for a greater understanding of the issues, and, in particular, the detailed nature of each of the said allegations, which are the subject-matter of these proceedings, and which were stated by Ms Owens at the commencement of the hearing:-

“There are four allegations concerning the claimant, namely:-

(1) A number of breaches of procurement processes including:

· In an e-mail on 18^th of June 2010 entitled ‘Waterfront Belfast’ to Louis Oliver from Lighting and Show Design, David Sinton recommended the use of a rigging company, CW (Chris Williams) Rigging, for work at the Ulster Hall.

· In a forwarded e-mail of 18^th of October 2010 entitled ‘Supply of Crew’, to Brian Robinson from Stage Production Crew (also employed as cleaning and portering team leader with BCC), Dave Sinton forwarded confidential details of another service provider’s rates (Stage Crew Productions). This was immediately prior to a tender process in which Dave was aware that both Stage Production Crew and Stage Crew would be invited to submit an application.

· In an e-mail of 30^th of November 2010 from Phil McVeigh to Dave Sinton entitled ‘Robes’, Phil McVeigh refers to ‘you makin’ a turn’, implying an inappropriate business relationship between Dave Sinton and Production Services Ireland and Sean Pagel from which Dave Sinton would personally gain.

· In a forwarding e-mail of 11^th of January 2011 entitled ‘FW : PPE Quote’, Dave Sinton forwarded details of service provider’s prices (Production Ireland) to ‘Chris Williams’, during a price quotation exercise for the procurement of personal protective equipment.

· In an e-mail of 24^th of January 2011 entitled ‘Rigging Shit’, Dave Sinton transferred a Belfast City Council quotation exercise, for which he was responsible, to an external contractor with the intention of ensuring that this supplier, Chris Williams, provided the lowest price quotation for the procurement of rigging equipment by asking him to secure quotes from other companies for Dave Sinton, which would be higher than the quotes supplied.

(2) Neglect of duty – in that Dave Sinton was undertaking work for PLM Productions whilst Clockwise reports show that he was in work for Belfast City Council.

(3) A number of breaches of the Council’s Code of Conduct:-

· You misused your official position and information acquired in your official duties, to further the interests of other individuals, as evidenced by the fact that:

· In an e-mail of 18^th of June 2010 entitled ‘Waterfront Belfast’, to Louis Oliver from Lighting and Show Design, Dave Sinton recommended the use of a rigging company, CW (Chris Williams) Rigging for work at the Ulster Hall.

· In a forwarded e-mail of 18^th of October 2010 entitled ‘Supply of crew’, to Brian Robinson from Stage Production Crew (also employed as cleaning and portering team leader with BCC), Dave Sinton forwarded confidential details of another service provider’s rates (Stage Crew Productions). This was immediately prior to a tender process in which Dave was aware that both Stage Production Crew and Stage Crew would be invited to submit an application.

· In a forwarding e-mail of 11^th of January 2011 entitled ‘FW : PPE Quote’, Dave Sinton forwarded details of service provider’s prices (Production Ireland) to ‘Chris Williams’, during a price quotation exercise with the procurement of personal protective equipment.

· In an e-mail of 24^th of January 2011 entitled ‘Rigging Shit’, Dave Sinton transferred a Belfast City Council quotation exercise, for which he was responsible to an external contractor with the intention of ensuring that this supplier, Chris Williams, provided the lowest price quotation for the procurement of rigging equipment by asking him to secure quotes from other companies for Dave Sinton, which would be higher than the quotes supplied.

That you have subordinated your duty to the Council to your own private interest and you have put yourself in a position where duty and private interest conflict, as evidenced by the e-mail correspondence outlined.

(4) Neglect and abuse of his managerial authority, in that in an e-mail of 18^th of August 2010 to Phil McVeigh, Dave Sinton stated ‘I recommend you to come in on Sunday for a few hours (Jedward) then take some time off on the sick … to save your holidays’.”

2.11 The report, as stated by Ms Owens, then set out in considerable detail the findings of the investigators on each of the above issues, including, in particular, what the claimant had stated during the investigation in respect of each of the matters contained in the report. The report, in light of its findings, then set out its conclusions in relation to each of the allegations and finally its recommendations that the allegations, as found to be substantiated, had the potential to be considered gross misconduct and should be considered at a Stage 3 disciplinary hearing.

In particular, Ms Owens read out the investigatory officers had concluded, inter alia, in relation to each of the said allegations as follows:-

(a) In respect of Allegation 1 – e-mails 2, 4 and 5, the investigating officers concluded they were substantiated for the following reasons, namely:-

· Mr Sinton accepted that he sent these e-mails, and the contents of these e-mails is considered highly inappropriate and in contravention of the Council’s established procurement process with which, we are satisfied, Dave Sinton was familiar.

· In relation to e-mail 2, the investigating officers are satisfied that Mr Sinton sent this e-mail to Brian Robinson with the clear intention of sharing what we consider to be commercially sensitive information which had been provided to Belfast City Council in confidence by Stage Crew Productions. Furthermore, we are satisfied that, by his own admission, Dave Sinton sent the information to Brian Robinson in order to inform Brian Robinson about the practices of a competitor in order for him to improve his company’s competitive edge in relation to training and health & safety practices.

We consider this to a wholly inappropriate and unethical use of the information provided to Belfast City Council by Stage Crew Productions, and do not consider that Dave Sinton has presented any reasonable explanation for his actions in this regard. Indeed, we consider that his motivation for doing so was to enhance Brian Robinson’s company’s (Stage Crew Productions) chance of securing an upcoming tender, knowing as he did, that Stage Productions Crew and Stage Crew Productions were both to be invited to tender in the same exercise. We have formed this view given the fact that Dave Sinton was clearly in possession of the information from 25^th of August 2010, but did not send it to Brian Robinson until it became of greater commercial value to him, in advance of the quotation exercise, in October 2010.

· In relation to e-mails 4 and 5, we note that, in respect of purchases below a value of £3,000.00, Belfast City Council’s best practice ‘Procurement dos and donts’ document states that ‘there [is] no requirement for formal quotation; however we recommend that you test the market to ensure you are obtaining value for money’. We consider that Dave Sinton’s explanation that he was seeking to collect three quotations in this instances is indicative that he was, in fact, familiar with this principle and was rather more conversant with the Council’s procurement practices than he has suggested.

We are deeply concerned about Dave Sinton’s suggestion that his actions were irrelevant in this matter, because the items ultimately cost less than £3,000.00. Firstly, we would point out that the cost of the items could not reasonably be known until the quotations had been received. Secondly, we would point out that, as set out above, it is considered best practice to ‘test the market’ in such exercises in order to ensure value for money. However, it is our view that Dave Sinton’s actions in this regard could not truly be considered in keeping with this principle. We would point out that he has clearly indicated during the investigation that he had pre-empted the outcome of this exercise in that he had already determined that he would purchase the goods from Chris Williams. It is our view that this is entirely contrary to the principles of fair and transparent spending of ratepayer’s money and would suggest that Dave Sinton’s actions in this matter were loaded in favour of this particular supplier. Furthermore, we would suggest that this view is supported by the fact that, Dave Sinton again shared commercially sensitive information, namely a quotation received from Sean Pagel, with Chris Williams, in order to direct Chris Williams in his preparation for a quotation for these goods.

We have found no evidence to substantiate Dave Sinton’s assertion that Chris Williams would have provided additional services to Belfast City Council in terms of training, in conjunction with providing the goods for which he was quoting. We do not accept Dave Sinton’s submission that he was unaware that his actions were wrong, or that they were attributable to a lack of management, common knowledge, or training.

In support of this, we point out that throughout the last three and a half years, while the post of venue manager has not always been filled, he has reported directly to the operations manager and has had access to other members of the Waterfront Hall’s senior management team.

In addition he has had access to the Waterfront Hall’s dedicated Finance and Administration Section who can provide advice and support if required and indeed, by Dave Sinton’s own admission, have done so on occasions when he had sought such advice.

Furthermore it is our view that Dave Sinton has demonstrated throughout this investigation, a reasonable understanding of Belfast City Council procurement processes, especially in relation to the practices of obtaining quotations.

As set out in the report, the investigating officers did not find delegation substantiated the allegations in relation to e-mail 1 and e-mail 3.

(b) In relation to the second allegation, the investigating officers concluded it was substantiated for the following reasons:-

· Extensive evidence was identified which supports the conclusion that Dave Sinton was working on the planning of events for PLM Productions whilst Clockwise Reports show that he was in work for Belfast City Council.

· Dave Sinton has agreed that the e-mails sent and received by him were in relation to work he was doing for PLM Productions, and the telephone records of calls made from the Waterfront Hall to PLM Productions were made by him.

· Given the volume of e-mails and telephone calls over the period March 2010 to February 2011 the investigating officers would conclude that it is more like than not that Dave Sinton was unable to properly to devote himself to the duties for which he is paid by Belfast City Council during his working hours.

· The investigating officers have identified no evidence to support Dave Sinton’s suggestion that there was any ‘gentleman’s agreement’ in place at the Waterfront Hall which would have allowed him to undertake this volume of work and dedicate this much time and Belfast City Council’s resources (in the form of e-mail and telephone usage) to another commercial enterprise, while he was working for the Council. Indeed, we note Dave Sinton’s own acceptance that, in any case, such a ‘gentleman’s agreement’ would not extend to undertaking work for other organisations whilst working for Belfast City Council.

· The investigating officers did note that Dave Sinton had submitted a conflict of interest declaration which stated that he works for PLM Productions on a casual, events specific basis as production director. He also advises that he is occasionally employed by CW Rigging as a ground rigger for Odyssey Arena gigs. He also advises that PLM have, in the past, been clients of Ulster Hall, St George’s Market and Giants Park events. CW Rigging has had occasional employment with the Facilities Department of the Waterfront and some rigging services for 2010 pantomime.

· However we do not consider that this is evidence of any agreement that Dave Sinton could be extensively involved in the planning of PLM Productions events whilst on duty for Belfast City Council.

· The investigating officers noted Dave Sinton’s suggestion that the fact that he took additional hours, both on overtime and in his own time, mitigated the amount of time he spent undertaking for PLM Productions. However, we would suggest that this would not have been necessary if he had concentrated solely on his Waterfront Hall duties, when at work. Moreover we would suggest that such a defence is highly inappropriate in terms of Dave Sinton’s apparent view that it is acceptable to accrue overtime because of a failure to undertake his dedicated Belfast City Council tasks during his true working hours and in absence of any evidence that he was undertaking Waterfront Hall tasks in his own time.

(c) In relation to the third allegation, the investigating officers concluded it was substantiated in respect of e-mails 1, 2, 4 and 5, given the following:-

· The Belfast City Council Code of Conduct states that:-

“Employees should not misuse their official position or information required in the official duties to further their private interest or those of others.”

· The Belfast City Council Supplier Charter … states that:-

“In its relationship with the supply market Belfast City Council:

Will carry out all its purchasing activities to the highest ethnical standards and in line with the relevant purchasing legislation.”

· It is our view that in view of e-mail 1 there is clear evidence that Dave Sinton used his position as the Belfast City Council Officer with responsibility for liaising with a client, to advantage the private interest of Chris Williams, by directing him to CW Rigging. We note that in the e-mail, Dave Sinton sets out full contact details of Chris Williams and clearly states:-

“I recommend CW Rigging in Belfast for riggers if you need one.”

We further note that Dave Sinton accepted that he has a personal relationship with Chris Williams and emphasised his professional admiration for Chris Williams. We have therefore formed the view that Dave Sinton unnecessarily and deliberately recommended CW Rigging to a Belfast City Council client, in order to direct that client to Chris Williams’ private enterprise.

In respect of e-mail 2, we are satisfied there is clear evidence to support the conclusion that Dave Sinton used information acquired as part of his role as a Belfast City Council officer, namely commercially sensitive information provided by Stage Crew Productions, to advantage the personal interest of Brian Robinson’s company, ‘Stage Productions Crew’.

In forming this conclusion we have noted Dave Sinton’s own admission that he was providing the information to Brian Robinson because he did not think Brian Robinson was ‘getting it’ in terms of what he had to do in relation to training his staff, and he wanted Brian Robinson to be aware of what others had in place. Indeed, we note that Dave Sinton expressed the view that the training element was very important for Brian’s company, if they wanted to continue to get casual work in the industry.

Of even greater concern to this investigation was the fact that Dave Sinton did not provide this information to Brian Robinson on the date he received it, but that it was sent after both Stage Crew Productions and Stage Productions Crew had both been named by Dave Sinton as potential suppliers, in advance of a quotation exercise. It is our view that this supports the conclusion that Dave Sinton’s actions in this regard were motivated by an intention to advantage Stage Productions Crew’s private commercial interest over that of a competitor.

· In respect of e-mails 4 and 5, it is our view that in respect of e-mail 1, there is clear evidence that Dave Sinton used his position as the officer with responsibility for purchasing these goods, to advantage Chris Williams in order to ensure the goods were purchased from him. We note that Dave Sinton has repeatedly referred to a personal relationship with Chris Williams and has indicated that he always intended to order the items from Chris Williams, from the outset. It is therefore our conclusion that in this case Dave Sinton was undoubtedly using his official position to advantage the private interest of Chris Williams.

(d) In relation to the fourth allegation, the investigating officers concluded it was substantiated given the following:-

· Dave Sinton accepted that he sent the e-mail to Phil McVeigh.

· While it may have been the case that Dave Sinton was concerned about Phil McVeigh’s health, it is our view that his actions in suggesting that Phil McVeigh were entirely disproportionate, given that there is no evidence to suggest that Phil McVeigh had sought advice, guidance or support from Dave Sinton in respect of his health, and this e-mail appears to have been entirely unsolicited.

· Furthermore, even if it was the case that Dave Sinton was concerned about Phil McVeigh’s health, it is our view that he was aware of what action was expected of him, as a manager, in seeking support and advice around this issue, following his attendance at the Attendance Policy Training and what support he ought to have been offering to Phil McVeigh as an alternative to sickness absence.

· We do not consider that Dave Sinton had any reason to believe that it was appropriate or acceptable to encourage an employee to take a period of sickness absence and we believe his actions in doing so were entirely contrary to Dave Sinton’s responsibilities under the Council’s attendance policy. We would also comment that we consider it strange that, if Dave Sinton was as concerned as he purported to be about Phil McVeigh’s health and wellbeing, he would have suggested that Phil McVeigh take sick leave, only after working at an event. We would suggest that this contradicts somewhat, Dave Sinton’s suggestion that his actions were entirely motivated by sympathy and concern.

2.12 During the course of the disciplinary hearings, over the number of days as set out above, the matters set out in the investigation report were discussed in considerable detail with the claimant and his representative who were given every opportunity to challenge various matters contained in the investigation report relied on by the respondent. It was not disputed between the first and second day of the disciplinary hearings, the claimant and his representative were given a copy of the said investigation report and notes of the meetings. Again, detailed minutes were taken of the disciplinary hearings and again, taking account of the fact these were not meant to be verbatim notes, the accuracy of them was not seriously challenged by the claimant and his representative at the hearing of this matter.

2.13 By letter dated 18 November 2011, the disciplinary panel wrote to the claimant informing him the panel, after reviewing all the evidence presented in respect of each allegation, had made the following findings, which again are set out below, in some detail, due to their complexity, insofar as relevant and material:-

Allegation 1

In regard to the allegation that you breached procurement processes, the following evidence was considered:-

(1) A forwarded e-mail of 18 October 2010, entitled ‘Supply of Crew’ to Brian Robinson from Stage Production Crew.

In respect of this aspect of the allegation, we note that the e-mail you received to your work e-mail address from Stage Production Crew was sent to you on 25 August 2010. However, you did not forward this to Mr Robinson until 18 October 2010. Thus, the information was in your possession for almost eight weeks before you forwarded it to Mr Robinson. We note that you could offer no reasonable explanation for sending this e-mail at this time. However, we consider that the timing of this e-mail is significant as we note that you attended a meeting to discuss the tender documentation on 12 October 2010 and provided Carol Abel, Business Co-ordinator (Finance, Grounds and Systems), and Judith Owens, Operations Manager, with names and addresses to be included in tender invites.

We note that you advised that you sent this e-mail to Mr Robinson to assist him in preparing for participation in future tender processes. You explained that your intention was to highlight to Mr Robinson information relating to training which you felt that he did not understand. We do not accept this argument. We note BCC said tenders are assessed on a price/quality basis and that the quality of the tender is usually as significant as the price. By providing assistance to Mr Robinson in respect of the ‘quality’ element, we consider that your actions could have as much, or more, impact on the outcome as revealing customer prices. Furthermore, you explained that ‘Stage Crew Productions’ rates were widely known and therefore denied that information relating to prices was confidential. However, we note that the e-mail from Stage Crew Productions states that:-

“For general crew we charge £13.00 per hour, however this rate is obviously negotiable for longer term engagements.”

We therefore do not consider that Stage Crew Productions had a well-known ‘set’ rate. We consider that your actions in disclosing this e-mail were designed to undermine the tender process and seek to provide an unfair advantage for Mr Robinson.

On your behalf, your representative argued that, if the e-mail sent from Stage Crew Productions was not marked ‘private and confidential’, it was reasonable for you to assume that the information contained within the e-mail was not confidential. Moreover, as the e-mail which you subsequently forwarded to Mr Robinson was sent to you at a time when you were not working, this e-mail should be considered to be private correspondence. We do not accept this argument. The e-mail was sent to a Belfast City Council e-mail address in your role as Production and Stage Manager and the information contained within this should have been considered to be commercially sensitive.

While we accept that you received no formal procurement training, we consider that it is reasonable to consider that the obligation to keep confidential details of a competitor’s rates and supporting evidence is so obvious that most Council employees and especially an officer in your role would be aware of this.

(2) A forwarded e-mail of 11 January 2011 entitled ‘FT : PPE Quote’.

(3) An e-mail dated 24 January 2011 entitled ‘Rigging Shit’.

In respect of these e-mails we note that you claim that you were aware that the procurement process would not apply to the procurement of rigging equipment as this would be unlikely to be priced over £3,000.00. You therefore believed that there was no obligation to obtain additional quotes. However, you asked Mr Williams to obtain quotes for your use, which were used as ‘higher quotes’ to demonstrate that you were getting value for money.

We do not accept this argument. We note that the original quotation provided by Mr Williams … amounted to £4,042.28. Based on your arrangement with Mr Williams this would have been the lowest quote obtained. We also note that this was subsequently changed, without documentary evidence to explain why, to a lower figure of £2,707.44. However, it is well in excess of the lower procurement of £3,000.00. Clearly, therefore, at the relevant time, and despite your assertion to the contrary, the value of the goods would have required a formal procurement process, which ought to have been managed in line with the Council’s published procedures.

In these circumstances, awarding the work to a particular, preferred supplier and requesting the supplier to obtain higher quotes then his own in order to provide a spurious justification for the award is not in line with the Council’s procurement process.

In addition, the panel is not persuaded that quotes were not required simply because the potential purchase order was raised in the amount of £2,707.44. At the relevant time (ie when the schedule of goods/services was prepared and prices obtained) it is clear that the total cost would easily have exceeded the lower threshold and that a full quotation exercise should have been initiated. Mindful of your comment that you were aware that you were required to obtain quotes for items valued at over £3,000.000, we therefore conclude that you knew that the procurement process applied and therefore deliberately sought to circumvent this. Moreover, we consider this incident demonstrates your awareness of the procurement process, notwithstanding your evidence to the contrary. We believe that you knew the difference between right and wrong in this regard.

Moreover, we cannot establish any basis for your suggestion that by asking for price quotations at a higher level than the quotation given by Chris Williams you would establish that you had achieved value for money. Rather, we consider that your intention was to place the order with Chris Williams regardless of any consideration of costs.

You contend that you had not received adequate training in respect of the procurement process and were inadequately supervised whilst performing your role and therefore should not be held responsible for any errors made in respect of a procurement exercise. We do not accept this. Whilst we acknowledge that you did not attend a formal training event on this issue, we conclude that you were aware of the process. We note that resources, in respect of Carol Abel and Judith Owens, were available to you in the event that you had any queries. We also note that, when we asked you if you had ever sought assistance in respect of this you declined to answer this question directly. The evidence adduced by Carol Abel that you did seek support when you were unclear of other issues coupled with your reluctance to answer this question lead us to conclude that you would have known to ask for assistance if you were unsure. We are satisfied that sufficient support was available to you, notwithstanding the fact that your immediate line manager was absent from work for an extended period of time.

Whilst we noted your contention that procurement is not specifically part of your JD, on review of your JD, we note that this includes responsibility for ‘the generation of contra and higher charges for technical services’. In addition, your role requires that you ‘ensure that the most cost-effective delivery of events and contract commitments for the Halls, through the development of appropriate and financially beneficial supplier relationships’. We consider that these responsibilities were fundamental to your role and consider that you had adequate support in fulfilling these duties. Whilst these responsibilities do not specify the obligation to follow the procurement process, we are satisfied that you were aware of the mechanisms following obtaining services for the Council.

In light of the conclusions outlined above, we are satisfied that this allegation, in regard to the e-mails sent by you to Mr Brian Robinson on 18 October 2010 and the e-mail you sent to Chris Williams on 24 January 2011 is substantiated. We consider this to amount to gross misconduct and therefore disciplinary action is justified and warranted.

Allegation 2

In respect of the allegation that you were undertaking work for PLM Productions, whilst Clockwise Report show that you were in work for Belfast City Council, we conclude as follows:-

We note that you accepted that you sent 375 e-mails relating to work you were undertaking for PLM Productions, during your working hours with the Council. You also accepted that you made 581 telephone calls at a cost of £34.34 to the Council to PLM Productions telephone numbers. You claim that investigating officers have sought to sensationalise this allegation arguing that, in reality you were only spending on average 5.7 minutes per day on other duties. We note that, even accepting your calculations for the limited time taken away from your duties, this equates to a period of approximately 1.3 days over 10 months that you were not carrying out your work duties whilst clocked in at work.

In addition, your representative sought to argue that each of these e-mails or telephone calls was made during lunch breaks, tea breaks or smoke breaks. You also suggested you carried out Council work-related activities during times when you were not in work and this, in effect, balanced out the time that you spent at work, working for PLM Productions Ltd. In support of this, he highlighted that you would on occasions send work-related e-mails out of hours. We do not accept that there was justification in using Council resources, including computer, e-mail and telephone calls to conduct your business. We would also highlight that there is no allowance for smoke breaks within the Council’s Work Life Balance Handbook and do not accept your representative’s suggestion that the telephone calls you made and e-mails you sent were not conducted during your working time. We note that you received overtime payments for work conducted out of hours and therefore do not accept that this ‘balanced out’ the time you spent away from your duties whilst clocked in for work.

Finally, you suggested that there was ‘gentleman’s agreement’ which you had entered into with Waterfront Hall management whereby you were entitled to carry out work for PLM Productions Ltd. We note that Mr Husband denied the existence of such an agreement and that you have provided no evidence to support this. Whilst we accept that management was aware of your role with PLM Productions, we consider that this was on the understanding that you would be granted leave to attend PLM Productions events, we do not accept that there was evidence to support a suggestion that you were given explicit authority to engage in work for PLM Productions whilst in work for Council.

Having regard to the conclusions outlined above, we consider that this allegation is substantiated and that disciplinary action in respect of this is justified and warranted.

Allegation 3

In respect of the allegation that you breached the Council’s Code of Conduct, by misusing your official position and information acquired during the delivery of official duties, to further the interest of other individuals, we noted that your trade union representative argued that this was effectively ‘double-charging’.

Whilst we do not consider that this was ‘double-charging’, having regard to the conclusions reached in respect of Allegation 1, which we consider to have been substantiated and, moreover, to constitute gross misconduct, we do not consider that further assessment of these issues in respect of this allegation would serve any further purpose.

Allegation 4

Finally, in respect of the allegation that you suggested to Phil McVeigh that he take time off sick, we note that you accepted that this e-mail had been sent by you. We noted that you had difficulty in trying to explain why you sent this e-mail, but suggested that Mr McVeigh was having personal difficulties and you felt that he was actually unwell and should therefore take time off without using his annual leave.

In this regard, we note that your e-mail stipulates that this should only take place after ‘Jedward’ and therefore considered that this undermines your contention that your e-mail stemmed from consideration for Mr McVeigh. We do not therefore accept your explanation.

We note that your e-mail makes no reference to Mr McVeigh being unwell and indeed, Mr McVeigh confirmed that he was not sick at the time and that your e-mail was unsolicited. We are mindful that the management of attendance is a key issue on a Council-wide basis and therefore consider that the potential use of the attendance policy is of considerable significance.

Having regard to the conclusions reached above, we are satisfied that this allegation can be substantiated and that disciplinary action is justified and warranted.

2.14 Further matters were also referred to in the said letter, relating to various specific matters raised by the claimant’s trade union representative during the course of the said disciplinary hearings, but which the panel did not consider, for the reasons set out in the said letter, altered their decision.

In particular, in relation to the following matters, insofar as relevant and material to this decision, the panel stated:-

“(1) Disclosure of documentation :

Your representative argued that the decision by the Council not to disclose a FOI request and a complaint received by the Council, which ultimately led to the identification of the allegations against you amounted to a procedural flaw. We note that you were advised that the information not provided to you did not relate directly to you.

Moreover, the information was confidential, commercial sensitive and legally privileged. We are satisfied that you received adequate notification of the exact allegations that have been made against you, well in advance of disciplinary hearings and do not consider that you were prejudiced by the decision not to release this document. We do not therefore accept that this amounted to a procedural flaw. We note that it is now a subject of a separate FOI request, which is being dealt with by the Department.

(2) Corporate Complaint

Your representative argued that upon receipt of a complaint from Stage Crew, the only course open to management was to deal with this document as a customer complaint. We do not accept this. We consider it was appropriate for complaints made by Stage Crew to be dealt with by the Council’s AGRS Service and Procurement Unit. Moreover we do not consider that the manner in which the complaint was dealt with had material impact on the fact that, subsequent to receiving a complaint, management determined to investigate allegations of misconduct relating to you.

(3) Preliminary Investigatory Interview

In regards to this, your representative suggested that it was inappropriate for you to be given only 15 minutes notice of a preliminary investigation. We note the purpose of a preliminary investigation is to provide an employee with an immediate opportunity to respond to an allegation of misconduct. There is no requirement within the Disciplinary Procedure for lengthy notice periods to be issued prior to a preliminary investigatory interview. You were able to attend this investigation accompanied by a TU representative and we are satisfied that the conduct of the investigating interview was in accordance with Council procedures.

(4) Suspension :

Your representative questioned the decision to suspend you. The panel consider, having regard to the nature of the allegations under investigation, that the decision to suspend you was justified and carried out in accordance with the Council disciplinary procedure.

Your representative also suggested that your suspension was not reviewed. In this respect we would highlight that a letter was sent to you dated 22^nd of April 2011 confirming that you would remain on suspension whilst the investigation remained ongoing. We consider that under the circumstances this was appropriate. Preliminary investigatory interview was in accordance with Council procedures.

Reference was also made to a number of individuals whom the claimant’s representative believed should have been interviewed during the course of the investigation but which, for the reasons set out in the said letter, the disciplinary panel did not consider it was necessary. This included Ms Judith Owens, whom the panel determined did not have to be the subject of further interview, as she had accepted the claimant did not have an immediate line manager in place. The panel also made the following reference to Ms Owens’ involvement in the disciplinary process, namely:-

“In addition you suggested that Ms Judith Owens should not have been appointed as an investigatory officer as she was biased against you. You suggested Ms Owens was responsible for your conduct, in her position as Operational Manager, and therefore, had she properly supervised you, you would not have acted in the way that you did. We do not accept this argument. We accepted your evidence that you did not have an immediate line manager in place at all times and that you would therefore report to Ms Owens. However, we do not consider that this had a material impact on the allegation in question. We can find no evidence to suggest that Ms Owens would have authorised the decisions you made in respect of Allegations 1, 2 and 4. We do not accept that Ms Owens’ role undermined the conduct of the investigation.”

Finally, the letter concluded:-

“Having regard to the conclusions reached above, the panel considered that three of the four allegations against you have been substantiated. As such this represents a fundamental breach of the trust and confidence that the Council has in you as an employee. We therefore conclude that corrective action would be ineffective and have determined that you should be summarily dismissed with immediate effect from the date of this letter for gross misconduct.

…

You have a right of appeal against the panel’s decision. Should you wish to lodge an appeal, it must be received in writing by the Head of Human Resources, within 10 working days of the date of this letter.

Should you chose to exercise this right, your letter must fully detail the grounds for appeal.”

In accordance with the procedures the decision of the panel was unanimous.

2.15 By letter dated 1 December 2011, the claimant appealed the decision of the disciplinary panel, as set out in its letter 18 November 2011, referred to previously, to dismiss him.

In the said letter of 1 December 2011, the claimant’s representative, again requested, inter alia, and, in particular, a copy of the original letter of complaint, which he stated he understood did not name the claimant but clearly implicated him and was the basis for the disciplinary action taken against the claimant, according to the letter of suspension and the investigators’ report. As noted before, the respondent had refused to disclose the letter on the grounds that the information provided did not directly relate to the claimant, was confidential, commercially sensitive and legally privileged.

2.16 The claimant’s request was subsequently referred to the Chief Executive of the Council. It was agreed, by letter dated 29 February 2012, the original letter of complaint raised by Stage Crew to the Council’s Procurement Section in September 2010, together with relevant email trail documentation, subject to certain redaction, and the Council’s response thereto dated 25 January 2011, should be disclosed to the claimant, along with other documentation relating to the disciplinary process, which he had requested. All of which was received by him prior to the hearing of the appeal.

2.17 The claimant’s appeal to the Joint Appeal Board was held on 2 April 2012, 23 May 2012, 18 June 2012 and 1 August 2012. Alister Joynes was the independent member, who acted as chairperson, the other members of the Board were Mr Michael Kiddle of the trade union UCATT and Mr Skimin, Head of Cleansing Services of the Council. The Joint Appeal Board‘s report was dated 13 August 2012. Again detailed minutes of the various appeal meetings were taken and their accuracy was not seriously challenged, at the hearing, taking into account they were not intended to be a verbatim record of each meeting.

2.18 The original letter of complaint from Stage Crew in September 2010 which was disclosed, as set out above, raised concerns regarding the procurement of crew by the Council, which concerns were reviewed by the Council’s Fraud Response Group. The Council’s Audit, Governance and Risks Services Unit subsequently wrote to Stage Crew on 25 January 2011 outlining the findings from their investigation. As acknowledged in evidence at the hearing of this matter by Mr Joynes, the response by the Council revealed many concerns about the procurement practices of the Council and in particular the Council’s investigation had confirmed that “until very recently no formal procurement had been carried out for the engagement of event Stage Crew and that this was not in accordance with good procurement practice. However, we were able to verify that this was an area that had been identified as a gap by Belfast Waterfront management prior to the receipt of your letter, as discussions had already taken place with the Council’s Procurement Manager in June 2010 concerning this very issue. The claimant was not expressly named in the complaint by Stage Crew but it is apparent from the response that it would have been known by the respondent that the complaint involved, in part, the claimant as it related to the claimant’s company providing event crew services. The tribunal is satisfied that, although this complaint by Stage Crew is part of the background and/or context to this matter and, which ultimately led to the discovery of the specific allegations, the subject-matter of the disciplinary process against the claimant, it was no more than background and/or context. In particular, the complaints raised by Stage Crew were not the subject-matter of the specific allegations made against the claimant.

2.19 In its report, the Appeal Board, after setting out in some detail the key points relied upon by both the claimant and the Council unanimously concluded the decision of the disciplinary panel dismissing the claimant should be upheld:-

“That Mr Sinton had breached the Council’s procurement processes on several occasions, had undertaken work on behalf of another organisation whilst being clocked in to work for Belfast City Council and had misused his managerial/ supervisory authority in telling an employee to take time off on the basis of a sickness absence. The panel, therefore, concluded that the decision to dismiss Mr Sinton was fair and reasonable in all the circumstances.

The main grounds for reaching this conclusion were as follows:-

(a) Mr Sinton had not contested that the allegations made against him were other than factually accurate.

(b) Mr Sinton’s primary arguments to the appeals panel were based on a number of alleged procedural failings on the part of Belfast City Council. Whilst the appeals panel carefully considered each of these arguments, it was concluded they did not materially impact on the decision of the disciplinary panel.

(c) Mr Sinton would have been well aware of the basis requirement for a competitive tendering process and would not have required formal training to understand the implications of his actions in this regard. This would equally have been the case in relation to both the attendance procedure and the element of working for another organisation whilst clocked into work for Belfast City Council.

(d) The response of the Council was within the band of reasonable responses for the offences for which Mr Sinton accepted responsibility.

2.20 Despite the claimant’s representative’s submissions to the contrary, there was no evidence of a conspiracy by the Council and its officers/management to have the claimant dismissed nor was there any evidence of inconsistency by the respondent of treatment of other employees carrying out the same or similar actions which were found in this matter to have been carried out by the claimant. Further, there was no evidence found by either the disciplinary panel or the appeal board to support the claimant’s contention that the procurement practices in the Waterfront Hall were different/in some way looser than applied in the rest of the Council and/or there was some form of ‘gentlemen’s agreement’ to allow him to act in the ways, which were found to be wrong by the said panel and appeal board in this matter.

2.21 The tribunal was satisfied that both the disciplinary panel and the appeal board considered, whether dismissal was the appropriate sanction in the circumstances. Both concluded that, in light of the three allegations found to be substantiated, this represented a breach of trust and confidence in the claimant as an employee and that corrective action would be ineffective and that, in the circumstances, the claimant had to be dismissed.

2.22 During the appeal hearing, issues were raised by the claimant’s representative to the appeal board that, following disclosure of the further documentation, the investigatory report was amended by Mrs Devlin, a senior HR Adviser, who was not involved in the disciplinary investigation. Indeed, during the meeting on 1 August 2012, the claimant’s representative suggested this issue was such that the decision to dismiss could not stand and the Joint Appeal Board should therefore overturn the dismissal. The Joint Appeal Board considered this submission and adjourned to determine the impact of the amendments made on the fair hearing of the case. On reconvening, the panel informed the claimant that it had reviewed the amendments made, which were able to be seen from the tracked documentation in the documentation, but concluded that there had been no material changes to the contents of the disciplinary investigation report and, in particular, there had been no material changes to the ‘conclusions’ section and there was no evidence of detriment to the claimant as a result. Indeed, during his evidence, Mr Joynes referred to them as “cosmetic changes”. Following this unanimous ruling, the claimant and his representative withdrew from the appeals process. Subsequently, the claimant’s trade union representative returned to the appeal hearing when he was advised that, as they had left the process, the panel would reach a decision and communicate this to the claimant and his representative in due course.

2.23 The claimant also, during the course of the appeal, raised the issue that two officers connected with the disciplinary hearing, namely Ms Judith Owens and Ms Dorman, had been in attendance at a meeting of the Fraud Response Group where issues relating to the complaint received by the Council from Stage Crew were discussed. The tribunal was satisfied that the Fraud Response Group is a high level advisory group to ensure that any issues raised in the original complaint were addressed through Council procedures and, in particular, were not required to, and did not, consider and deal with any disciplinary issue under the Council’s disciplinary procedures. In any event, as set out above, although the original letter of complaint from Stage Crew is part of the background and/or context to this matter, it did not raise the specific allegations, the subject-matter of the disciplinary process of the claimant.

2.24 By letter dated 20 August 2012, the Chief Executive wrote to the claimant in relation to concerns the claimant had raised with him by letter dated 13 August 2012. In the letter the Chief Executive assured him that his concerns were not dismissed out of hand but rather, on receipt of his letter and before authorising the implementation of the decision of the Independent Joint Appeals Board that heard the appeal, he requested a response from the Corporate HR Section on the issues that had been raised by the claimant. He stated that having considered this fully he did not deem it necessary to intervene in the determination of the Independent Joint Appeals Board which he noted was unanimous. He also pointed out that Joint Appeals Board is the final stage of the Council’s disciplinary procedures which were negotiated and agreed with the Council’s trade unions and which are applied consistently to all Belfast City Council employees. He pointed out that the Council’s internal procedures were now exhausted and he attached to the letter the information he had received from the HR Section in relation to the concerns faced by the claimant, as referred to above.

3.1 Relevant legislation

(a) Article 126 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) provides:-

“(1) An employee has the right not to be unfairly dismissed by his employer.”

(b) Article 130 of the 1996 Order provides:-

“(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 (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) The reason falls within this paragraph if it –

…

(b) relates to the conduct of the employee;

…

(4) 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 reasons 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 as treating it as a sufficient reason for dismissing the employee; and

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

…

(6) Paragraph (4) is subject to Article 130A …

“(1) An employee who is dismissed shall be regarded for the purpose of this Part as unfairly dismissed if –

(a) one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal;

(b) the procedure has not been completed; and

(c) the non-completion of the procedures is wholly or mainly attributable to failure by the employer to comply with these requirements.

(2) Subject to Paragraph (1) 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.”

3.2 Substantial changes to the law of unfair dismissal were introduced, following the commencement in April 2005 of the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’); and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’). The 2003 Order and the 2004 Regulations introduced, inter alia, statutory procedures to be complied with by an employer relating to matters of discipline and/or dismissal. These provisions came into operation on 3 April 2005. They were not repealed by the Employment Act (Northern Ireland) 2011 and were therefore applicable, insofar as relevant and material, to this matter:-

In essence, the statutory procedures introduced under the said legislation required employers, subject to certain exemptions which were not applicable to this case, to follow a specific procedure when subjecting employees to disciplinary action or dismissal. There are two alternatives, namely:-

(a) Standard dismissal and disciplinary procedures (DDP);or

(b) a modified DDP.

There was no dispute that the latter procedure was never applicable in this matter.

(ii) Under the standard DDP it is provided at Paragraphs 1 – 3 of Schedule 1 of the 2003 Order as follow:-

“Step 1 –

A statement of grounds for action and invitation to meeting –

(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 a statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

Step 2 – Meeting

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

(2) Meeting must not take place unless –

(a) the employer has informed the employee of what the basis was for including in the statement in Paragraph (1) the ground or grounds given in it; and

(b) the employee has had a reasonable opportunity to consider its 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

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

(2) If the employee informs the employer of its 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 its final decision.”

(iii) There are a number of general requirements set out at Paragraphs 11 – 13 of Part III of Schedule 1 of the 2003 Order, which provide, as follows:-

“Introductory

(11) The following requirements apply to each of the procedures set out above (so far as applicable)

Timetable

(12) Each step and action under the procedure must be taken without unreasonable delay.

Meeting

(13)

(1) Timing and location of meetings must be reasonable.

(2) Meetings must be conducted in a manner which enable both employer and employee to explain their cases.

(3) In the case of appeal meetings which are not the first meeting, the employer should, as far as is reasonably practicable, be represented by a more senior manager than attended the first meeting (unless the more senior manager attended that meeting).”

(iv) Under Regulation 12 of the 2004 Regulations, it is provided, in essence, that the failure of a party to follow the applicable DDP then releases the other party from the obligation to follow it:-

(12)(1) If either party fails to comply with the requirement of an applicable statutory procedure including a general requirement contained in Part III of Schedule 1, … non-completion of the procedure shall be attributable to that party and neither party shall be under obligation to comply with any further requirement of the procedure.”

(v) Under Regulation 3(1) of the 2004 Regulations, the standard DDP applies when the employer contemplates dismissing or taking relevant disciplinary action against an employee.

(vi) Existing contractual and dismissal procedures remain to the extent that they supplement the statutory DDPs – which are intended to give the employee certain ‘basic’ protections.

4.1 It was not disputed that, in determining the reason for the dismissal, pursuant to Article 130(1)(a) of the 1996 Order, the burden was on the respondent to establish the reason relied upon by it and it was capable of justifying the dismissal. The question of whether it did in fact justify it depended on whether the tribunal was satisfied the respondent acted reasonably in all the circumstances in treating the reason as sufficient, pursuant to the provisions of Article 130(4) – (6) of the 1996 Order.

(See further Harvey on Industrial Relations and Employment Law – D1, Paragraph 808 and following.)

4.2 In relation to a case where the reason for the dismissal is found to be misconduct, the tribunal, as set out above, has to determine the dismissal is fair, having regard to the provisions of Article 130(4) – (6) of the 1996 Order, referred to previously.

Applying the dicta, which originated in the well-known case of British Home Stores Ltd v Burchell [1980] ICR 301, and other subsequent cases, it is necessary for a tribunal to determine:-

(i) whether the employer had a genuine belief in the guilt of the employee;

(ii) whether it had reached that belief on reasonable grounds;

(iii) whether this was following a reasonable investigation; and

(iv) whether the dismissal of the claimant fell within the range of reasonable responses in light of that misconduct.

In Sainsburys Supermarkets Ltd v Hitt [2003] IRLR 23, it was made clear the range of reasonable responses test applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason. Mummery LJ also pointed out in Hitt the reasonableness of the employer’s investigation is to be considered by the objective standards of the reasonable employer, having regard to the particular circumstances of the case.

In Iceland Frozen Foods Ltd v Jones [1983] ICR 17 – Browne-Wilkinson J offered the following guidance:-

“ …

(1) the starting point should always be the words of [Section 57(3)] themselves;

(2) in applying the section the 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.

It has long been established in relation to a reasonable investigation the need for an employer to acquaint itself with all relevant facts before taking its decision. As Viscount Dilhourne said in W Devis & Sons Ltd v Atkins [1977] IRLR 314:-

“The employer cannot be said to have acted reasonably if he reached his conclusion ‘in consequence of ignoring matters which he ought reasonably to have known and which would have shown that the reason was insufficient’.”

In W Weddel & Company Ltd v Tepper [1989] IRLR 96, it was held that:-

“ …[employers] do not have regard to equity or the substantial merits of the case if they jump to conclusions which would have been reasonable to postpone in all the circumstances until they had, in the words of the [employment] tribunal in this case ‘gathered further evidence’ or, in the words of Arnold J in the Burchell case, ‘carried out as much investigation into the matter as was reasonable in all the circumstances of the case’. That means they must act reasonably in all the circumstances, and must make reasonable enquiries appropriate to the circumstances. If they formed their belief hastily and act hastily upon it, without making the appropriate enquiries or giving the employee a fair opportunity to explain himself, their belief is not based on reasonable grounds and they are certainly not acting reasonably … .”

The above dicta was followed and adopted in this jurisdiction by the Court of Appeal in the cases of Dobbin v Citybus Ltd [2008] NICA 42 and Rogan v South Eastern Health & Social Care Trust [2009] NICA 47 and again, more recently, in the case of Antrim Borough Council v McCann [2013] NICA 7 and Gould v Regency Carpet Manufacturing Ltd [2013] NICA 26. In London Ambulance NHS Trust v Small [2009] IRLR 563, Mummery LJ re-stated the normal rule that a tribunal is not entitled to substitute its own findings of fact for those of the employer or its investigating or dismissing officer. In the recent decision of McCann, Girvan LJ, in considering the issue of the band of reasonable responses which a reasonable employer must have adopted, expressly referred to the dicta of Longmore LJ in Bowater v Northwest London Hospitals NHS [2011] EWCA 63, when he stated:-

“The employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the tribunal to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer.”

4.3 It has long been held that where an employer carries out his enquiry in accordance with the procedure agreed with the unions, it will be extremely difficult indeed for the employee to show that the investigation is insufficient or inadequate or fails to meet the standards of the Code of Practice for natural justice (see East Hertfordshire District Council v Boyten [1977] IRLR 347). Of course, in this context, an employee will be entitled to challenge an agreed procedure if it is not correctly followed, though a breach will not automatically render the procedure unfair (see further Harvey on Industrial Relations and Employment Law, D1, Paragraphs 1519 – 1525).

4.4 Procedural defects in the initial disciplinary hearing may be remedied on appeal, provided that in all the circumstances the later stages of the procedure are sufficient to cure any earlier unfairness. As the Court of Appeal held in Taylor v OCS Group Ltd [2006] EWCA Civ 702:-

“If an early stage of a disciplinary process is defective and unfair in some way then it does not matter whether or not an internal appeal is technically a re-hearing or review, only whether the disciplinary process as a whole is fair. After identifying a defect a tribunal will want to examine any subsequent proceedings with particular care. Their purpose in so doing will be to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open-mindedness (or not) of the decision-maker, the overall process was fair, notwithstanding any deficiencies at an early stage.”

4.5 It has long been recognised that a suspension of an employee could be seen to be a stigma and good industrial relations practice did not require it in every case (see East Berkshire Health Authority v Matadeen [1992] IRLR 336). In this context, it must also be recognised that the Labour Relations Agency Code of Practice on disciplinary and grievance procedures, which industrial tribunals are required to take into account when considering relevant cases, provides, inter alia in relation to the issue of suspension:-

“Dealing with disciplinary issues in the workplace …

In certain cases, for example in cases involving alleged gross misconduct, where relationships have broken down or there are risks to an employer’s property or responsibilities to other parties, consideration should be given to a brief period of suspension with full pay whilst an unhindered investigation is conducted. Such a suspension should be imposed only after careful consideration of the necessity for this. Employers should also consider alternative actions which would be more acceptable to the employee and serve the same purposes as a suspension. An alternative to suspension might be the agreeing of a temporary transfer to other duties or another workstation without loss of pay. Any action taken, including suspension on full pay, should be reviewed frequently to ensure that it is not unnecessarily protracted. It should be made clear that any action taken is neither considered as disciplinary action nor an indication of blame or guilt.

(See also Paragraph 38).

…

Dealing with gross misconduct

38 If an employer considers an employee guilty of gross misconduct and potentially liable for summary dismissal, it is still important to establish the facts before taking any action. A short period of suspension with full pay may be helpful or necessary, although the suspension should be imposed only after careful consideration and should be kept under review. It should be made clear to the employee that the suspension is not a disciplinary action and does not involve any pre-judgment.

(See also Paragraph 11)

… .”

In a recent decision, in the case of Crawford & Another v Suffolk Mental Health Partnership Trust [2012] EWCA Civ 138, Elias LJ, obiter in a footnote, raised concerns about the use of suspension by employers:-

“It appears to be the almost automatic response of many employers to allegations of this kind to suspend the employees concerned, and to forbid them from contacting anyone, as soon as a complaint is made, and quite irrespective of the likelihood of the complaint being established. As Lady Justice Hale, as she then was, pointed out in Gogay v Hertfordshire County Council [2000] IRLR 703, even where there is evidence supporting an investigation, that does not mean that suspension is automatically justified. It should not be a knee jerk reaction, and it will be a breach of the duty of trust and confidence towards the employee if it is. I appreciate that suspension is often said to be in the employee's best interests; but many employees would question that, and in my view they would often be right to do so. They will frequently feel belittled and demoralised by the total exclusion from work and the enforced removal from their work colleagues, many of whom will be friends. This can be psychologically very damaging. Even if they are subsequently cleared of the charges, the suspicions are likely to linger, not least I suspect because the suspension appears to add credence to them. It would be an interesting piece of social research to discover to what extent those conducting disciplinary hearings subconsciously start from the assumption that the employee suspended in this way is guilty and look for evidence to confirm it. It was partly to correct that danger that the courts have imposed an obligation on the employers to ensure that they focus as much on evidence which exculpates the employee as on that which inculpates him.

I am not suggesting that the decision to suspend in this case was a knee jerk reaction. The evidence about it, such as we have, suggests that there was some consideration given to that issue. I do, however, find it difficult to believe that the relevant body could have thought that there was any real risk of treatment of this kind being repeated, given that it had resulted in these charges. Moreover, I would expect the committee to have paid close attention to the unblemished service of the relevant staff when assessing future risk; and perhaps they did.

… .”

4.6 In the well-known House of Lords decision in Polkey v AE Dayton Services Ltd [1988] ICR 344 it was held that, in essence, an employer who had acted unreasonably and in breach of procedures could not contend that, since the dismissal would have occurred anyway, even if proper procedures had been followed, the dismissal should be found to be a fair dismissal. Indeed, it is only in limited circumstances that an employer would be able to successfully argue that compliance with fair procedures would be futile.

However, although the tribunal that might find that dismissal to be unfair, the tribunal, following Polkey, is able to reduce the employee’s compensation by a percentage to represent the chance the employee would have still been dismissed. A Polkey reduction therefore requires an employer to satisfy the tribunal it would have dismissed the employee, even if it had complied with fair procedures.

4.7 Article 130A(2), as set out previously, made a further change to the law of unfair dismissal and resulted in certain circumstances, in a partial reversal of the principles set out in Polkey, as indicated above.

Article 130A(2) provides that a dismissal, following a failure to follow other procedural steps, will not affect the fairness of the dismissal, provided the employer can show the employee still would have been dismissed, if he had followed the steps correctly. The Polkey decision was partially reversed and the ‘no difference rule’, which had applied before Polkey, was reinstated for a failure to follow procedures, other than the new statutory dismissal and disciplinary procedures. The reference to procedures in Article 130A(2) has been the subject of some conflicting decisions in the Employment Appeal Tribunal, but the generally accepted view would seem now to be that it applies to any procedure, written or otherwise, which the tribunal considers a reasonable employer might follow (see Kelly-Madden v Manor Surgery [2007] IRLR 17).

4.8 However, what is clear, from the legal authorities, is that Article 130A(2) is only of assistance to an employer, whenever the DDP has been complied with. Automatic unfairness cannot be cured by invoking Article 130A(2) (Butt v CAFCSS [UKEAT/0362/07]). As was made clear in the case of Goodin v Toshiba [UKEAT/0271/08], there can be a Polkey reduction of up to 100% in an automatic unfair dismissal case, where the breaches of procedure would have made no difference to the dismissal. If the employer has complied with the DDP (but the dismissal is nevertheless unfair for other reasons), but there is a greater than 50% chance that the employer would have dismissed the employee, pursuant to Article 130A(2), the dismissal will be fair. Thus, where the relevant DDP has been complied with but the dismissal is procedurally unfair for the ordinary purposes of Article 130(4) of the 1996 Order, any Polkey deduction cannot exceed 50%.

4.9 In Software 2000 Ltd v Andrews [2007] UKEAT/0533/06, Elias J, as he then was, emphasised that tribunals must consider any reliable evidence, even if speculative, in carrying out the exercise to determine whether or not dismissal would have occurred if a fair procedure had been followed. Using its common sense experience and sense of justice in the normal case, that would require to assess for how long the employee would have been employed but for the dismissal. However, it is for the employer who seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, to adduce any relevant evidence on which it wishes to rely; but in doing so, the tribunal must have regard to all the evidence from making the assessment, including any evidence from the employee itself. As Elias J stated in his judgment:-

“The mere fact an element of speculation was involved was not a reason for the tribunal refusing to have regard to the evidence.”

4.10 When determining whether or not dismissal is a fair sanction, it is not for the tribunal to substitute its own view of the appropriate penalty for that of the employer. (See further Harvey on Industrial Relations and Employment Law, D1, Paragraph 1534 – 1535.01.)

The sanction of dismissal can be considered an unfair sanction in certain circumstances (see later) where the employer has in the past treated other employees guilty of similar misconduct more leniently. Such a dismissal would then be unfair because it is not in accordance with equity (see further Article 130(4) of the 1996 Order and Post Office v Fennell [1981] IRLR 221, which held the word ‘equity’ in the phrase (having regard to equity and the substantial merits of the case in Article 130(4) of the 1996 Order comprehends the concept that employees behave in much the same way should have metered out to them much the same punishment. An Employment Tribunal is entitled to say that where that is not done and one man is penalised much more heavily than others who have committed similar offences in the past, the employer has not acted reasonably in treating whatever the offence is, as a sufficient reason for dismissal. However, as was made clear in the case of Hadjioannou v Coral Casinos Ltd [1981] IRLR 352 emphasised that the emphasis in Article 130(4) of the 1996 Order is on the particular circumstances of the individual employee’s case. An argument by a dismissed employee that the treatment he received was not on a par with that metered out in other cases is relevant in determining the fairness of the dismissal in only three sets of circumstances. First, it may be relevant if there is evidence that employees had been led by an employer to believe that certain categories of conduct will either be overlooked, or at least will not be dealt with by the sanction of dismissal. Second, there may be cases where evidence in relation to other cases supports an inference that the purported reason stated by the employer is not the real or genuine reason for dismissal. Third, evidence as to decisions made by an employer in truly parallel circumstances may be sufficient to support an argument, in a particular case, that it was not reasonable on the part of the employer to visit the particular employee’s conduct with the penalty of dismissal and that some lesser penalty would have been appropriate in the circumstances. It was further emphasised that Employment Tribunals should scrutinise arguments based on inconsistency with particular care and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar, or sufficiently similar to afford an adequate basis for argument. It stressed that flexibility should be retained by employers and tribunals should not be encouraged to think that a tariff approach to industrial misconduct is appropriate. As was held in Procter v British Gypsum Ltd [1992] IRLR 7, the requirement that employers must act consistently between all employees means that, before reaching a decision to dismiss, all employers should consider truly comparable cases of which he knew or ought reasonably to have known. The overriding principle must be, however that each case must be considered on its own facts and with freedom to consider mitigating aspects.

5.1 As stated previously, it was not disputed that the respondent applied the Council’s disciplinary procedures, and the tribunal, given the terms of those procedures, found no grounds had been established by the claimant to show the statutory disciplinary procedures, under the 2003 Order, had not been complied with. Therefore, the dismissal was not automatically unfair under the 1996 Order (see also paragraph 4.3 of this decision). In particular, there is no doubt the disciplinary process was lengthy commencing on or about 23 March 2011 until in or about August 2012. However, the tribunal is satisfied this was not an unreasonable delay in the circumstances, contrary to the general requirements under the statutory dismissal procedures and/or the requirements of the respondent’s own disciplinary procedures; but rather reflected the considerable amount of time taken by the respondent, in response to all the matters raised by the claimant and his representatives, to investigate and deal with them at each stage of the disciplinary process. As set out previously, meetings relating to the investigation and/or disciplinary hearing and/or appeal hearing were lengthy and numerous, which, inevitably, would have also resulted in some administrative delay in organising same. The tribunal accepts further delay arose out of the claimant’s representatives’ request for additional documentation and the respondent’s initial refusal to provide same, to which further reference will be made later in this decision. However, despite the initial refusal, all documentation was produced before the conclusion of the disciplinary process.

5.2 Given the serious nature of the allegations made against the claimant and the necessity for them to be properly and fully investigated, the tribunal is satisfied that the paid suspension of the claimant was in accordance with the relevant disciplinary procedures. In particular, it was kept under review but, due to the lengthy period of investigation and the disciplinary process itself, it was inevitable, in the circumstances, that the period of paid suspension was also lengthy. Further, the tribunal is satisfied that, given the nature of the allegations, the respondent’s decision to suspend the claimant on full pay throughout the disciplinary process was a decision which fell within the band of reasonable responses.

5.3 It was not seriously challenged, during the course of the hearing, that the reason for the dismissal was the gross misconduct of the claimant, as found by the respondent, in particular in relation to his breaches of the procurement procedures, his undertaking work for PLM Productions when clocked in for work with the respondent and that he had misused his managerial/supervisory authority in telling an employee, Mr McVeigh, to take time off on the basis of a sick absence. The issue relating to the claimant’s breach of the respondent’s code of conduct was, in essence, properly considered by the disciplinary panel to have been dealt with by the findings in relation to the breaches of the procurement procedures and was not considered further, either by the disciplinary panel or indeed the appeal board. Having done so, the determination of whether the dismissal was fair or unfair therefore depended on whether, in the circumstances, the respondent, as employer, acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the claimant, which has to be determined in accordance with equity and the substantial merits of the case (see further the principles and case law set out in paragraph 4.2 of this decision. As was made clear in the recent decision of the Court of Appeal in Davies –v- Sandwell Metropolitan Borough Council (2013) EWCA Civ135, when deciding whether the employer acted reasonably in dismissing the employee, “It is not for ET to conduct a primary fact finding exercise. It is there to review the employer’s decision. Still less is the ET there to conduct an investigation into the whole of the employee’s employment history …”.

5.4 The tribunal had initial concerns that the investigation report and notes etc relating thereto were not provided to the claimant prior to the disciplinary hearing, which in the judgment of the tribunal, was contrary to the disciplinary procedure of the respondent (see paragraphs 8.1 – 8.3 of the said procedures). However, firstly the investigation report was read out in full at the commencement of the first day of the disciplinary hearing; but more importantly, all this relevant documentation was provided between the first and second day of the disciplinary hearings. The tribunal was therefore satisfied the above failure was of no actual consequence and did not make the dismissal unfair. In particular, at all material times, the tribunal was also satisfied the claimant was fully aware of the allegations made against him and any such initial failure to provide the relevant documentation before the first hearing did not affect his ability to respond to the allegations. It is correct that the investigation report was subject to amendment by Mrs Devlin, which fact was not discovered until the appeal hearing. Indeed, the members of the disciplinary panel were not aware of this at the time of the disciplinary hearing and the decision taken by them. It is also correct that Mrs Devlin, when making the said amendments, referred to them in correspondence to the investigators as “significant changes”. Mrs Devlin, albeit a Senior HR Advisor, was not part of the investigation team of investigatory officers and did not attend any of the investigation meetings. The tribunal had serious concerns about her role in making these changes in the above circumstances. It does not consider it is good practice and would emphasise it is a practice which should not be followed by the Council. If investigators require further training in how to compile such investigation reports then it should be provided. Her role, in the judgment of the tribunal, seems to have gone beyond mere advice, which might be expected to be given on occasion by an HR representative to such investigating officers, when the number of tracked changes made by her are considered. However, the tribunal having carefully considered the changes made in the report, is satisfied the appeal board, when it considered the matter in some detail, had good grounds for concluding there had been no material changes to the report. The tribunal is satisfied that the changes, as made by Mrs Devlin, which it must be recognised were also accepted by the investigators, did not significantly alter the terms and/or thrust of the allegations themselves but were related more to matters of “style”, “better phrasing/presentation” and in that limited sense might be considered to be cosmetic, as accepted by Mr Joynes, in evidence, during the course of the hearing. The claimant’s representative was given a full opportunity to raise all relevant matters relating to this issue during the course of the appeal. Mindful of the tribunal’s role, the tribunal is satisfied, for the reasons set out above, the decision taken by the appeal board, as set out above, was within the range of reasonable responses in the circumstances. Clearly it would have been better if this issue had arisen, prior to the appeal hearing; but, as seen in Taylor –v- OCS Group Limited (2006) EWCA Civ 702, since the matter was considered and properly dealt with on the appeal, the tribunal was satisfied the disciplinary process, taken as a whole, was fair in the circumstances and the appeal board had remedied any earlier defect in relation to this issue of the amendment of the investigation report.

5.5 The tribunal has no doubt that it would have been better, not least with the benefit of hindsight, if the original letter of complaint in or about September 2010, by Stage Crew and associated documentation had been released to the claimant and his representatives, when originally requested and was not provided until after the decision to dismiss had been taken by the disciplinary panel and the appeal was pending. Firstly, it would have enabled the disciplinary process to have been shorter. However, as accepted by the tribunal, this documentation was background/contextual information and was not directly related to the specific allegations, the subject matter of the disciplinary hearings, the claimant was told sufficient, without the release of the documentation, to enable him to properly meet these allegations at the disciplinary hearing. The documentation was available at the appeal hearing and was able to be considered in detail during the course of that hearing. Therefore, any failure to disclose the documentation earlier was therefore resolved by the date of the appeal hearing (see Taylor). The tribunal, given the background/contextual nature of the documentation could well understand the initial reluctance of the respondent, which inevitably resulted in further delay, to release the documentation, since it was a commercially sensitive issue arising out of a complaint about procurement and raised potential issues of legal privilege in the event of Stage Crew bringing other legal proceedings. These were real issues for the respondent, in the judgment of the tribunal, and the refusal to disclose was done for proper reason at the time. It was not done, in the tribunal’s judgment, in bad faith and/or to prevent the claimant properly responding to the allegations made against him. However, by disclosing it prior to the appeal hearing, it avoided any risk of unfairness to the claimant or, in particular, any fear by him that what was contained therein might be of assistance to him in defence of the allegations. In the event, as seen previously, the documentation was of no assistance to him in defence of his claims. By the disclosure by the respondent any risk of unfairness was clearly remedied and did not require to be further considered by the tribunal.

5.6 The tribunal has no doubt, whenever the detailed investigation report and findings of the disciplinary and appeal board are considered and which have been set out in considerable detail in this decision, that the respondent has satisfied the test referred to in British Home Stores –v- Burchell and Iceland Frozen Foods Ltd (see further paragraph 4.2 of this decision). It is apparent from the matters set out in these documents, this was not a superficial investigation by the respondent. Indeed, the matters raised by the claimant were each considered at every stage of this lengthy process. As found in the said documentation, there was little or no dispute on the facts but rather the dispute related to whether the “innocent” interpretation/spin the claimant put on those facts should be accepted. The tribunal could find no proper grounds for criticising the disciplinary panel and/or appeal board for not accepting the claimant’s ~”innocent” interpretation/spin on those facts, which meant the respondent had the necessary belief that the claimant’s conduct was, as alleged by the respondent. Indeed, in so interpreting those facts, as it did, the respondent, in the judgment of the tribunal, satisfied the reasonable responses test. Given the serious nature of each of the allegations, which represented for the respondent a breach of trust and confidence which it had had in the claimant as an employee, the tribunal was satisfied the sanction of dismissal fell within the band of reasonable responses of a reasonable employer. The tribunal therefore concluded the dismissal of the claimant was fair.

5.7 Even if the tribunal is wrong and the procedural failures referred to in paragraphs 5.4 and 5.5 of this decision were unreasonable/unfair, it would still have concluded, even if a fair procedure had been followed, there would have been a greater than 50% chance that the respondent would have still dismissed the claimant. It would have done so on the basis that the said failures were remedied before the conclusion of the disciplinary process but also on the basis of the considerable factual evidence obtained in the course of the disciplinary process, irrespective of the above failures, and which was able to be relied on by the respondent in deciding to dismiss the claimant. Thus, any dismissal in such circumstances, would have been fair, in any event, pursuant to Article 130A(2) of the 1996 Order.

6. The claimant’s dismissal was therefore not unfair and his claim was therefore dismissed.

Chairman:

Date and place of hearing: 10 – 13 December 2012, Belfast

Date decision recorded in register and issued to parties: