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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Trimble v Armagh City and District Counc... [2014] NIIT 1261_14IT (17 December 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/1261_14IT.html
Cite as: [2014] NIIT 1261_14IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1261/14
CLAIMANT: Jonathan Trimble
RESPONDENT: Armagh City and District Council
DECISION
The unanimous decision of the tribunal is that the claimant’s claim is dismissed.
Constitution of Tribunal:
Employment Judge: Employment Judge Murray
Members: Mrs C Stewart
Mr A White
Appearances:
The claimant represented himself.
The respondent was represented by Mr C Hamill, Barrister-at-Law instructed by Ms B Jones of Jones Cassidy Brett Solicitors.
THE CLAIM
1. The claimant claimed unfair dismissal. The respondent claimed that the dismissal was fair as the claimant was guilty of gross misconduct.
THE ISSUES
2. The issues narrowed at hearing to the following:
(1) Was the penalty of dismissal too harsh for the misconduct which was admitted by the claimant?
(2) Was the claimant dealt with more harshly than another employee Mr M for similar misconduct?
(3) If the claimant was unfairly dismissed, what is the appropriate remedy?
SOURCES OF EVIDENCE
3. The tribunal heard evidence from Mr J Hayes, Building Control Manager for the Council; Mrs C Corvan, Strategic Director of Corporate Services and Governance with the Council, who dealt with the disciplinary hearing; and Mr J Briggs, Chief Executive of the Council who dealt with the appeal. The claimant gave evidence on his own behalf. The tribunal had written statements from the witnesses together with their oral evidence and the documentation to which it was referred throughout the hearing.
THE LAW
4. The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) Order 1996 (“ERO”). At Article 130 of ERO it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2). One of the potentially fair reasons for dismissal, listed at Article 130(2)(b), relates to the conduct of the employee. If the tribunal finds that the employer has dismissed for a potentially fair reason, the tribunal must then go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4).
5. The task for the tribunal in a misconduct dismissal case is set out in the case of Dobbin v Citybus Ltd 2008 NICA 42 where the Court quoted as follows from the case of British Home Stores Ltd v Burchell 1980 ICR 303:
“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of misconduct in question … entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. Thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case”.
6. The employer does not have to prove beyond reasonable doubt that the employee was guilty of the misconduct, but merely that it acted reasonably in treating the misconduct as sufficient for dismissing the employee in the circumstances known to it at the time. The reasonableness of the employer’s decision is looked at at the time of the final decision to dismiss namely at the conclusion of any appeal hearing. The tribunal’s task, in essence, is not to conduct its own investigation and come to its own view of the offence but rather, to assess whether the employer’s actions in relation to procedure and penalty fell within the range of reasonable responses which a reasonable employer might have adopted in the circumstances. This approach has been endorsed by the Northern Ireland Court of Appeal in the case of Rogan v South Eastern & Social Care Trust [2009] NICA 47.
7. The statutory disciplinary and dismissal procedures must also be followed in relation to any dismissal. In summary these provide, insofar as they relate to the circumstances in this case, that an employer contemplating disciplinary action must set out the grounds for the proposed disciplinary action in writing and invite the employee to a meeting. The meeting must take place at a reasonable time, on reasonable notice and the outcome of the meeting must be communicated to the employee together with the right of appeal. If the employee appeals there must be a further meeting. There was no breach of the SDP in this case.
FINDINGS OF FACT AND CONCLUSIONS
8. The claimant was employed as a Building Control Officer by the respondent from January 2007 until he was dismissed on 15 April 2014.
9. As a Building Control Officer, the claimant was responsible for a particular geographical area and his work involved liaising with builders and inspecting their work to ensure that it was compliant with the various Building Control Regulations. It was common case that part of the claimant’s job involved ‘policing’ such work and that he could be involved in enforcement. The role of the Building Control Department is to administer and enforce the Building Regulations which are aimed at ensuring the health and safety of individuals in and around buildings.
10. The Code of Conduct for Local Government Employees applied to the claimant and states where relevant as follows:
“2.1 Employees will maintain conduct of the highest standards such that public confidence in their integrity is sustained.
...
Integrity. [Employees should] not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties. Responsibility is placed on every member of staff for disclosing to an appropriate Manager or Officer of the Council every potential conflict of interest in which he/she may be involved. In general employees’ private interests must not be such as to have the potential for allegations of impropriety or partiality to be sustained thereby bringing the Council into disrepute. Employees should not misuse their official position or information acquired in their official duties to further their private interest or those of others.
...
Any breach of the terms of this Code will be dealt with in accordance with the provisions of the disciplinary procedure of the Council. Employees should not use any information obtained in the course of their employment for personal gain or benefit nor should they pass it on to others who might use it in such a way.
...
Employees should devote their whole time service to the work of their Council and shall not engage in any other business or take up any other additional appointment without the express consent of the Council. Where the Officer wishes to engage in other business or take up additional appointments he must seek the permission of the Council and act at all times in accordance with any contractual obligations in this respect”.
11. The claimant’s terms and conditions which were signed by him on 30 October 2006 state as follows:
“Official conduct:
A. The Officer shall devote his/her whole time service to the duties of the Office and shall not engage in any other employment or business without the written consent of the Council”.
12. The claimant accepted that his actions were contrary to his terms and conditions, to the Code of Conduct for Local Government Employees and were contrary to his professional responsibilities as a Building Control Officer. He further accepted that his actions would have led to a breakdown in trust with his managers and that his actions had the capacity to bring the Council into disrepute. The claimant contended that the penalty of dismissal was too harsh in the circumstances.
13. The events which led to the disciplinary charges against the claimant related to a building project for Mr and Mrs C who had an extension to their house erected by builder SD. There were three aspects to the relevant events as follows:
(1) In September 2012 the claimant was approached by the builder who asked him to advise on building works. To this end, the claimant attended at Mr and Mrs C’s home after hours with the builder to discuss the project. The claimant accepted in evidence that the householders might reasonably have assumed that he was acting in his official capacity as he did not make it clear to them that he was acting in his personal capacity even though he knew that they had been told by the builder that he was from Building Control. The disciplinary process ultimately found that this event “blurred the lines” between his professional role and his personal capacity.
(2) At the beginning of May 2013 the builder contacted the claimant and asked him to prepare drawings for a planning application. The claimant did so and was paid £200.00 for the drawings. At this stage the work on the extension had already started and the claimant knew that this work had been done before planning permission and building control approval had been obtained. The claimant in evidence accepted that he should not have assisted in submitting a planning application when such unapproved work had been carried out. He agreed in evidence that he should have said at that stage that he could not get involved and he should then have told his line manager what was happening. The claimant accepted that there was an obligation on him to advise his colleagues and line manager of unapproved works. It was this failure to advise his line manager and Building Control colleagues which was regarded as very serious indeed by the employer.
(3) 16 September 2013. On that date the claimant overheard a conversation between AD (the Building Control Officer in whose district the unapproved works were being carried out) and her line manager when it was stated that a final warning letter would be sent to start legal proceedings in relation to the unapproved works. The claimant phoned the builder and the home owner to advise them of this situation rather than alerting his manager to the fact that he had been involved. It was this communication of information obtained in the course of his work to a third party which was regarded as a very serious transgression by the respondent.
14. Following completion of the works at the property, AD went to inspect the property in February 2014 and found issues of concern in relation to the building. The inspection by AD in February 2014 was prompted by communication from the Health and Safety Executive as there had been a fire in the dwelling on 3 December 2013 which seemed to be the result of a defective flue installation in the new extension. It was at that stage that the home owners brought to AD’s attention that someone from Building Control had been involved in the process. On that same day Mr Hayes asked those in the office if any of them had been involved in the project and the claimant disclosed his involvement the next morning.
15. Mr Hayes conducted the disciplinary investigation into the matter. The investigatory meeting took place on 21 February 2014 and the claimant attended along with his Trade Union representative. The investigators produced a report which recommended that disciplinary action be taken against the claimant in relation to possible gross misconduct.
16. By letter of 13 March 2013 the claimant was invited to a disciplinary hearing which ultimately took place on 11 April 2014. The claimant was accompanied by his Trade Union representative, the allegations were put to him in full and he had a full chance to put his side of his case.
17. The letter of dismissal of 15 April 2014 found that the claimant was guilty of gross misconduct in relation to the following three allegations: carrying out paid work which could be considered a conflict of interest, failing to make a declaration of interest in respect of this work and contacting an applicant in relation to office discussions. The decision-makers reflected any mitigating circumstances by providing pay in lieu of notice rather than imposing summary dismissal on the claimant.
18. The claimant appealed and an appeal hearing was heard on 13 May 2014. The claimant was accompanied by his Trade Union representative and the allegations were put to him and he had a full chance to put his side of the case. The panel had ‘clarification meetings’ on 14 and 15 May 2014 to deal with some points arising from the meeting with the claimant.
19. The appeal outcome was that the decision to dismiss was upheld. The panel considered lesser penalties such as transfer or demotion but they reasonably found that these would not be appropriate in the case. Mr Briggs in evidence to us made it clear that one of his concerns was the lack of insight of the claimant into the seriousness of his actions and his apparent lack of appreciation of how his role as an enforcement officer should have led him to make different decisions and to declare certain matters to his managers at a much earlier stage.
20. Part of the claimant’s case was that he had been treated more harshly than Mr M who was not disciplined for a similar offence. Mrs Corvan dealt with the issue relating to Mr M. We find Mr M’s situation was not comparable with that involving the claimant. It had come to managers’ attention that Mr M had provided a quotation for an energy survey to a community club. No money had changed hands and no work had been carried out. This contrasted with the situation involving the claimant where he had been involved in a project without the making the requisite declarations (despite the fact that at various points over a lengthy period he could and should have made such declarations) and had carried out work and received payment for that work without receiving permission or making the necessary declarations in that regard.
21. In the claimant’s case it was not simply a matter of his having produced drawings for the planning application. The respondent’s witnesses were clear that the issue for them related to his involvement without asking permission, his failure to declare his involvement, his failure to inform his managers of unapproved works and the fact that he relayed office discussions to the builder and homeowner instead of declaring his involvement at that stage.
22. Our task is not to rerun the disciplinary process nor to substitute our view for that of the employer. We find that the actions of the employer in relation to both procedure and penalty were within the band of reasonable responses for a reasonable employer in the circumstances.
23. We find that the relevant managers believed that the claimant was guilty of the misconduct which was, in fact, admitted by the claimant. They had reasonable grounds upon which to sustain that belief following a reasonable investigation and the claimant’s admission, and they imposed a penalty which was reasonable in the circumstances. The key point in this case was that the claimant was a public servant involved in an enforcement role and was bound by very clear obligations in relation to potential conflicts of interest and in relation to the fact that his first duty lay with his employer. In addition it was clear that there was an obligation on him to avoid putting himself in a position where he might compromise his position with members of the public or builders.
24. We can understand why the employer regarded the transgressions which were admitted, very seriously indeed and we can understand why they imposed the penalty of dismissal given that the claimant could not see where he had gone wrong even though he admitted the acts. The employer’s penalty was therefore reasonable in this case.
25. The claimant’s claims are therefore dismissed.
Employment Judge:
Date and place of hearing: 10 and 11 November 2014, Belfast.
Date decision recorded in register and issued to parties: