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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Mr X v Ministry of Defence [2014] NIIT 1281_12IT (19 May 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/1281_12IT.html
Cite as: [2014] NIIT 1281_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1281/12
CLAIMANT: Mr X
RESPONDENT: Ministry of Defence
DECISION
The unanimous decision of the tribunal is as follows:-
The claimant was not unfairly dismissed by the respondent and the claimant’s claim for unfair dismissal is hereby dismissed in its entirety.
Constitution of Tribunal:
Employment Judge: Employment Judge Turkington
Members: Mrs M-J McReynolds
Mrs C Stewart
Appearances:
The claimant appeared at the hearing and was represented by Ms M-C Campbell, Barrister-at-Law, Instructed by Peter Bowles & Co, Solicitors.
The respondent appeared at the hearing and was represented by Ms R Best, Barrister-at-Law, instructed by the Crown Solicitor’s Office.
THE CLAIM
1. The claim was a claim for unfair dismissal.
THE ISSUES
2. The issues to be determined by the tribunal were as follows:-
(a) An application was made to the tribunal, by agreement, for a Restricted Reporting Order to be made in this case. In addition, an application was made that the names of the claimant and any of the witnesses in this case and any other identifying matters should be excluded from the tribunal’s decision. These applications were made on the basis of the security situation in Northern Ireland at the present time and the potential risk to these persons if they were identified. The tribunal considered these applications in the exercise of its general powers in relation to case management. The tribunal weighed up all the relevant factors and took account of both the submissions of the parties and those made by a journalist present at the hearing. Having considered all these matters, the tribunal made a Restricted Reporting Order in the form annexed to this decision. Furthermore, the tribunal decided that it was appropriate to exclude from this decision any matter which could identify the claimant or any of the witnesses in the case or relevant locations.
(b) In relation to the substantive case, the tribunal had to consider whether the statutory dismissal procedure had been completed. If not, whether the respondent was responsible for such non-completion and whether the dismissal of the claimant was thereby rendered automatically unfair.
(c) In the event that the tribunal found that the claimant was not automatically unfairly dismissed, the tribunal had to determine whether the respondent had shown the reason for dismissal, whether that reason was a potentially fair reason and whether in light of the reason shown, the dismissal was fair or unfair in all the circumstances.
(d) In relation to the issue of remedy, the tribunal had directed the claimant to prepare and submit a Schedule of Loss at the re-convened hearing. However, the tribunal was informed by the claimant’s counsel towards the end of the hearing that, whilst an outline Schedule of Loss had been prepared, this did not include any potential loss of pension. Counsel considered that it would be necessary for the claimant to instruct an appropriate expert to formulate his claim in respect of pension losses. The claimant was most reluctant to take this step and incur the costs involved unless and until the claimant knew that the tribunal concluded he had been unfairly dismissed. Accordingly, by agreement, the parties sought a separate hearing in respect of remedies. The tribunal reluctantly concluded that it was left with no alternative but to accede to this request since, in practical terms, the parties were simply not in a position to deal with the issue of remedy before the conclusion of the hearing of the claim. Therefore, in the event that the tribunal found the claimant to have been unfairly dismissed, the tribunal had agreed to convene a separate remedies hearing.
CONTENTIONS OF THE PARTIES
3. Counsel for the respondent contended that the claimant was dismissed for gross misconduct, namely conduct relating to the submission of claims for travel expenses. The respondent’s counsel argued that the claimant was dismissed following a thorough investigation and that dismissal fell within the range of reasonable responses of a reasonable employer in the circumstances. She contended that it would be an error of law for the tribunal to reopen the factual issues on the basis of which the respondent had reached its conclusion. The only question was whether the respondent genuinely believed on reasonable grounds that the claimant was guilty of gross misconduct.
4. The claimant’s counsel contended that there was no reasonable investigation in this case into the allegation of misconduct against the claimant. Further, she argued that the explanations given by the claimant were not adequately taken into account by the decision-makers. The claimant’s counsel also argued that the respondent had failed to investigate the claimant’s allegation that other officers claimed travel expenses in the same manner as the claimant and that an allegation of fraud against the claimant was not made out. In all the circumstances, she contended that the decision-makers did not have reasonable grounds to sustain their belief in the claimant’s alleged misconduct and that dismissal was outside the range of reasonable responses and that the dismissal was therefore unfair in all the circumstances.
SOURCES OF EVIDENCE
5. The tribunal heard oral evidence from Colonel A, Brigadier B, Mr C and Ms D on behalf of the respondent and from the claimant, Mr Y and the claimant’s trade union representative Mr Z on behalf of the claimant The respondent also submitted a witness statement from Mr E, the claimant’s line manager and investigating officer. Mr E was not able to attend the hearing due to illness and was therefore not available for cross-examination by the claimant’s counsel. Accordingly, the tribunal gave significantly less weight to the content of the witness statement of Mr E than it did to the oral evidence of the other witnesses who appeared at the hearing and were cross-examined. The parties also referred the tribunal to a number of documents in the tribunal bundle.
FACTS OF THE CASE
Having heard the oral evidence given by all the witnesses at the hearing and having considered the witness statement of Mr E and all the documents referred to in evidence, the tribunal found the following relevant facts:-
6. The claimant was employed by the respondent at a base in Northern Ireland from November 2002 until he was dismissed on 20 April 2012. The claimant was employed as a Civilian Guard.
7. In the course of his employment, the claimant was from time to time required to travel to other MOD bases, for example to attend training courses. This was known as detached duty. When he travelled for detached duty, the claimant was entitled to claim his travel expenses for travel between his home and the other base.
8. The claimant was also entitled to claim travel expenses from home to base when he was required to attend his own base for the purposes of working over-time.
9. The respondent’s policy in relation to such travel expenses is set out in a document entitled “Policy, Rules and Guidance - Civilian Detached Duty Expenses”. Under the heading of “Means of Travel”, this document states as follows:-
“you are responsible for ensuring that you use the most effective and economical method of travel……………….”
10. Claims for travel in respect of over-time working were required to be made on paper Form 1904 and payment was made with salary since such payments were taxable. This was confirmed to all members of the Civilian Guard Service at the claimant’s base by their line manager Mr E by means of “all to read” memos dated 15 April 2008, 20 May 2009 and 18 November 2010. The latter memo indicated “this is a one time opportunity to rectify any genuine mistakes made. Any further discrepancies found during audit checks will be forwarded on to Fraud Investigations for their action.” “I do not wish for anyone to risk disciplinary action because of an oversight or innocent mistakes made so please take this opportunity to ensure any claims you have made have been on the correct claim form and are for the correct mileage. If you are unsure of what and how to claim for travel correctly - ask”. “Any questions regarding this matter can be addressed to me”.
11. The claimant along with all other employees of the MOD submitted his travel claims in respect of detached duty via an online system. Before a travel claim is submitted, employees are required to confirm agreement to the following declarations:-
“I declare that the information entered on this claim is correct and in accordance with the guidance contained within the Civilian Detached Duty Expenses PRG on the People Services Portal and that this expenditure has been authorised within my management area.”
“I understand that it is a serious offence to make or conspire in making a false statement on this claim and acknowledge that any false statement may lead to criminal prosecution or disciplinary action, either of which could result in dismissal.”
12. Online travel claims within the MOD are not counter-signed by a manager before payment. Rather, claims are paid on the basis of self-declaration and the MOD carries out audits of claims submitted after the event to check for any irregularities.
13. On 23 May 2011, following an interview at which he was accompanied by his trade union representative, the claimant was suspended by Mr E. The suspension letter of the same date confirmed that the claimant was suspended “in light of your failure to rectify the incorrect travel claims you have made for travel for additional attendances………….The allegation is that you are suspected of making fraudulent claims which is theft…………….”
14. Following the claimant’s suspension, his line manager Mr E carried out an investigation in relation to the claimant’s travel claims. In the course of that investigation, Mr E carried out an investigatory interview with the claimant on 18 August 2011. The claimant was accompanied by his union representative Mr Z. The claimant was asked a lengthy series of pre-prepared questions. In the course of this interview, the claimant referred to varying his routes to work.
15. On 25 August 2011, Mr E wrote to the claimant to invite him to attend for a further interview the purpose of which was to give the claimant the opportunity to clarify what his alternate routes were and what was his normal route to his base. Mr E confirmed that the claimant was entitled to be accompanied at this interview by his trade union representative. In his letter of response dated 29 August 2011, the claimant confirmed that he was not prepared to sign and return the record of the investigatory interview as this was not the full record of events. Furthermore, he was not prepared to attend a further investigatory interview under instruction from his trade union.
16. Around 29 August 2011, the claimant lodged a grievance. Colonel A was appointed to deal with the claimant’s grievance. He arranged to meet with the claimant on 22 September 2011 to hear the claimant’s complaint. It became clear during that meeting that the focus of the complaint was the ongoing disciplinary investigation in relation to the claimant’s travel claims and the delay in relation to that investigation. Colonel A was sympathetic to the claimant’s situation and undertook to look into what stage the investigation had reached. Following Colonel A’s intervention, a disciplinary charge letter was issued to the claimant on 26 September 2011.
17. The charge letter was signed by the Claimant’s manager Mr E. The charges against the claimant were as follows:-
“over the period 23rd January 2008 to 13th June 2010 ……you claimed on Form 305 for the additional attendances despite instructions issued by me- on three occasions - informing all staff that additional attendances must be made on form 1904 and not Form 305. Over this period you also failed to ensure that all aspects of your travel were done in the most economical manner. I am required therefore to charge you with the alleged major disciplinary offence of the submission of false claims for travel.”
18. The claimant was required to attend a disciplinary hearing to be chaired by Colonel A assisted by an independent member and an HR consultant. The claimant was warned that, depending on the facts established at the hearing, the outcome could be possible dismissal. This letter confirmed that the claimant was entitled to be accompanied and assisted at the hearing by a trade union representative and that he was entitled to call witnesses.
19. Before the disciplinary hearing, the Deciding Officer Colonel A was provided with an evidence pack which contained the following:-
A Civil Service Code.
B Major Discipline Policy Statement - Understand and Investigate an Alleged Major Discipline offence.
C Guide to Major Disciplinary Offences, including Gross Misconduct - this document states that the most common disciplinary offences in the gross misconduct category include “Submission of false claims for travel …..”.
D Guide to Major Discipline Potential Mitigating Circumstances.
E Major Discipline Policy Statement - Conduct Major Disciplinary Hearing.
F Policy, Rules and Guidance - Civilian Detached Duty Expenses.
20. This pack also included a copy of the notes of the investigatory interview on 18 August 2011 and maps and routes planner calculations from the RAC which showed the shortest and fastest routes from the claimant’s home to relevant bases. This was the first time these maps and planners had been made available to the claimant. Spreadsheets showing details of the claimant’s travel claims over the period January 2008 to March 2010 were also included. A summary was provided of the locations in question, the miles claimed and amount paid as compared with the shortest and fastest routes and the difference between the two together with the difference in money. The spreadsheet showed the sum allegedly over-claimed as £365.95.
21. The pack for the disciplinary hearing also contained an analysis of Case Precedents, namely 44 previous cases involving the submission of false claims for travel and subsistence. Of the 38 cases which proceeded to a hearing, 14 resulted in dismissal where the deciding officer considered the evidence established a breakdown in trust. In the remaining 24 cases which were found proven, a penalty short of dismissal was the outcome.
22. A copy of the disciplinary hearing pack was also provided to the claimant in advance of the hearing.
23. The disciplinary hearing took place on 19 January 2012. The hearing was conducted by Colonel A as Deciding Officer. An Independent Member Ms D was also present along with an HR Adviser Mr F and a note taker. The role of the Independent Member is to attend the Disciplinary hearing and to examine objectively all evidence presented together with the procedures that have been followed. The Independent Member must provide a fair and balanced view on the Disciplinary process to the Deciding Officer. The Independent Member is an adviser only and is not responsible for the final decision in a case.
24. The first charge regarding submission of claims for travel for additional attendance on the wrong form was discussed. The claimant was asked whether he understood the charge and confirmed that he did, but when asked if he admitted the charge, he replied no. The claimant alleged that other members of the guards service did likewise. The claimant also referred to an entry in his “police” notebook dated 10 December 2010 which was in the following terms:-
“Spoke with [HR] Peter? Told him what Line Manager said about travel claims, they said I have not done anything wrong all correct”.
Colonel A asked the HR Adviser present at the hearing to obtain a transcript of this phone call. All calls to MOD HR should be recorded and recordings and transcripts can normally be provided on request.
25. Colonel A then asked the claimant if he disputed the second charge of excessive mileage claims. The claimant replied that the claims were not excessive intentionally. The claimant accepted that he claimed additional miles. His explanation was that he varied his route for security reasons. There was further discussion about whether the claimant was under any particular level of security threat. When the claimant was asked about particular journeys, he said that he also claimed for miles travelled within camp. The claimant was asked if he had obtained the permission of his line manage for excess miles and replied no.
26. In their evidence to the tribunal, the claimant and his trade union representative Mr Z alleged that the Independent Member Ms D had called the claimant a “thief” during the course of the Disciplinary hearing. It was contended that this showed bias against the claimant and that this demonstrated that Ms D had pre-judged the outcome of the hearing. This allegation was flatly denied by Ms D. She gave evidence that she had made the hypothetical point that if someone had made a false claim for money he was not entitled to, then that could be construed as theft. Mr Z had then jumped in asking if she was accusing the claimant of being a thief.
27. Having had the opportunity to assess the evidence and demeanour of Colonel A, Ms D, the claimant and Mr Z who were all present at the Disciplinary Hearing, the tribunal has concluded that it prefers the account given by Ms D. The tribunal does not believe that Ms D directly called the claimant a thief. Rather, it has concluded on the balance of probabilities that Ms D made a hypothetical point and that Mr Z then asked her if she was accusing the claimant of being a thief.
28. After the disciplinary hearing, a copy of the notes of the hearing was sent to the claimant for agreement or amendment. By letter dated 13 February 2012, the claimant indicated that he was sending an amendment of additional points which had been discussed at the hearing and were not included in the record he had received. The claimant outlined 18 additional points. By letter dated 23 February 2012, Colonel A replied saying that he had noted all the claimant’s remarks and had attached them to the record.
29. At this stage, Colonel A was still awaiting the records of telephone calls made to MOD HR by the claimant in relation to travel claims. In particular, a record was sought of the telephone call referred to in the note in the claimant’s notebook dated 10 December 2010. In the end, a record was found of two telephone calls on this date, but these related to other matters. Colonel A did not seek to investigate further the claimant’s allegation that all other officers claimed travel in the same manner as he did.
30. Colonel A arranged to meet the claimant on 20 April 2012 to confirm his decision. Colonel A confirmed that he found the claimant guilty on both the disciplinary charges against him and that the claimant was dismissed. At this meeting, he described the charge of not claiming in the most economical manner (the second charge) as by far the more serious of the charges. The dismissal was confirmed by a letter dated 20 April 2012. In this letter, it was explained in relation to the second charge that, whilst Colonel A considered that a certain degree of route variation (for security reasons) was essential, he found that the pattern of behaviour was excessive with all claims made having additional mileage claimed. Colonel A considered that the evidence confirmed a pattern of rounding up to an unacceptable degree.
31. The claimant was informed of his right of appeal. The claimant lodged his appeal by a lengthy letter dated 24 April 2012. The points raised by the claimant included that the penalty was severe and unfair. Further, that the investigation was flawed. He also referred to inconsistent treatment and argued that he had no intent to commit fraud. The claimant alleged that he had been called a thief by Ms D and that she had found him guilty at the start of the hearing. He also argued that the policy in relation to variation of routes was not clear.
32. There were various attempts to arrange an appeal hearing during the period from May 2012 to November 2012. The appeal hearing eventually commenced on 10 January 2013. The appeal hearing was conducted by Brigadier B. He was assisted by the same HR Adviser who had attended the disciplinary hearing and a note taker was also present. The claimant attended the hearing accompanied by his trade union representative Mr Z. At the outset of the hearing, the claimant said that he was still awaiting the minutes of the grievance hearing with Colonel A on 22 September 2011. The claimant considered these minutes contained crucial evidence.
33. Brigadier B said that he understood the need for individuals to vary their routes, but that the claimant’s claims were always the same number of excess miles on the route from his home to base. The claimant replied that his claims were a combination of both journeys to work varying his routes and travel within camp. Brigadier B asked why the claimant never travelled the most direct route. The claimant confirmed that he never drove the most direct route and he only claimed for what he drove. The claimant was also asked about claiming for travel within camp. He replied that he used his car to travel around various camps. The HR adviser at the hearing outlined that there was no policy which covered travel within camp.
34. There was further discussion about particular routes. Brigadier B referred again to the fact that the claimant always claimed the exact same figure for travel between home and base even though he claimed to be varying his routes. The claimant said that he only ever claimed this figure despite on various occasions doing more. The Brigadier asked the claimant if he only claimed for what he drove and the claimant said he did. His first claim was for that figure and this is what he stuck with since. The claimant did not think that an additional 4 miles per day (each way) was excessive as it was varying his route and for travel within camp.
35. At the conclusion of the appeal hearing, Brigadier B confirmed that a number of matters were to be looked into further. These included the record of the grievance hearing in September 2011, policy guidance on the use of private vehicles in camp for overtime, courses etc and the availability of MOD vehicles for use at the camps relevant to the claimant’s travel claims.
36. On 17 January 2013, the notes of the grievance meeting on 22 September 2011 were sent to the claimant.
37. The appeal hearing resumed on 14 February 2013. The same parties were present at the resumed hearing. Brigadier B confirmed that the purpose of the hearing was to consider whether the process and consideration of the original hearing was fair and reasonable and in accordance with departmental policy and process.
38. The Brigadier confirmed that the outcome of further enquiries was that there was no policy guidelines which allow staff to claim mileage within camp and that MOD vehicles were available for use. This was disputed by the claimant. Brigadier B said that in any event, the distances involved were not sufficient to cover the excessive claims made by the claimant. Mr Z the claimant’s trade union representative argued that the mileage involved was not too excessive.
39. When invited to present any mitigation, the claimant contended that he had no previous history, apart from an unrelated incident. When invited by the HR adviser to elaborate on an earlier comment, the claimant said that he felt a grudge was held against him due to an incident on a firing range involving the wife of a training officer. He suggested that this was the reason for the disciplinary proceedings against him. The appeal hearing concluded. The claimant’s trade union representative also confirmed that the claimant had contacted HMRC and they had not required the claimant to take any steps in relation to the unpaid tax on the sums claimed on the wrong form.
40. Brigadier B confirmed his decision by letter dated 19 March 2013. He indicated that he considered there was a lack of consistency in the claimant’s case. Whilst the claimant said he only ever claimed actual amounts, his claims from home to base were always for the same amount and this was hard to believe when he also said he varied his routes to work. Brigadier B outlined that he also considered that the claimant’s explanations of including mileage within camps, for which there was no policy, had also undermined the claimant’s case. He therefore concluded that he could find nothing wrong with the deciding officer’s decision which was entirely reasonable.
41. In this letter, Brigadier B also indicated that he had examined the penalty issued. He accepted that the claimant faced a difficult welfare (family) situation and that this was the first significant disciplinary offence in the claimant’s service. However, he supported the decision on penalty. The claimant had admitted claiming excess mileage and had been unable to make a clear case for doing so during the appeal. This had occurred over a period of 14 months. Brigadier B determined that the claimant was guilty of gross misconduct and that for this Department such behaviour is intolerable.
42. As this was the final level of appeal, the penalty of dismissal therefore stood.
STATEMENT OF LAW
43. The statutory dismissal procedure introduced by the Employment Rights (Northern Ireland) Order (“the 2003 Order”) applies in this case. In basic terms, the statutory procedure set out in Schedule 1 of the 2003 Order requires the following steps:-
Step 1 - written statement of grounds for action and invitation to meeting - the employer must set out in writing the grounds which lead the employer to contemplate dismissing the employee
Step 2 - meeting - the meeting must take place before action is taken. The meeting must not take place unless -
(a) the employer has informed the employee what the basis was for including in the statement the grounds given in it, and
(b) the employee has had a reasonable opportunity to consider his response to that information
The timing and location of meetings must be reasonable.
After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision.
Step 3 - appeal - if the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting. After the appeal meeting, the employer must inform the employee of his final decision. The employee must be afforded the right to be accompanied at any meetings under the statutory dismissal procedure.
44. By Article 130A (1) of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), where the statutory dismissal procedure is applicable in any case and the employer is responsible for non-completion of that procedure, the dismissal is automatically unfair.
45. A tribunal is required to consider whether the dismissal is automatically unfair under Article 130A even where this issue has not been specifically raised by the claimant - see Venniri v Autodex Ltd (EAT 0436/07). Further, by Article 17 of the 2003 Order, where the tribunal is satisfied that the non-completion of an applicable statutory procedure is wholly or mainly attributable to failure by the employer, it shall increase any award which it makes to the employee by 10% and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount up to an increase of 50%.
46. Leaving to one side the question of potentially automatically unfair dismissal as referred to above, pursuant to Article 130(1) of the Order, it is for the employer to show the reason for the dismissal. Further, the employer must show that the reason shown by it is a reason falling within para (2). A reason falls within para (2) if it relates to the conduct of the employee.
47. Article 130(4) of the Order states as follows:-
“where the employer has fulfilled the requirements of para (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -
(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case”.
48. The leading cases in relation to conduct dismissals are summarised in the judgement of the Northern Ireland Court of Appeal in the case of Patrick Joseph Rogan v South Eastern Health and Social Care Trust. In his judgment in that case, the Lord Chief Justice refers to the case of Iceland Frozen Foods Ltd v Jones 1983 ICR 17 where Browne-Wilkinson J said as follows:-
‘(1) the starting point should always be the words of [article 130(4)] themselves;
(2) in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;
(3) in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;
(4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;
(5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.’
49. The Court in the Rogan case also quoted with approval the following passage from the case of British Home Stores 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 ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure,” as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter “beyond reasonable doubt.” The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion’.
50. In the Rogan case, the Court described the task of the tribunal as follows:-
“It is for the employer to establish the belief in the particular misconduct. The tribunal must then consider whether the employer had reasonable grounds upon which to sustain the belief and thirdly whether the employer had carried out as much investigation into the matter as was reasonable in all circumstances. The tribunal must also, of course, consider whether the misconduct in question was a sufficient reason for dismissing the employee.”
The Court of Appeal also noted that:-
“The judgment as to the weight to be given to evidence was for the Disciplinary Panel and not for the tribunal”.
51. In the case of Salford Royal NHS Foundation Trust v Roldan 2010 IRLR 721, the Court of Appeal in England and Wales held that it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where the employee’s reputation or ability to work in his or her chosen field of employment is potentially apposite.
As regards the impact of misconduct on the employment relationship, in the case of Neary v Dean of Westminster 1999 IRLR 288, it was held that whether particular misconduct justifies summary dismissal is a question of fact. The character of the institutional employer, the role played by the employee in that institution and the degree of trust required of the employee vis-à-vis the employer must all be considered in determining the extent of the duty of trust and the seriousness of any breach thereof.
52. In addition to the cases referred to specifically above, the tribunal took into account the cases referred to by counsel for both parties in their helpful and detailed submissions.
CONCLUSIONS
53. The tribunal considered firstly whether the statutory dismissal procedure had been complied with in this case. The claimant’s counsel did not contend that there had been any breach of the statutory procedure. The respondent had sent a letter to the claimant inviting him to attend a meeting in respect of the disciplinary charges against him. The claimant was also furnished with a copy of the disciplinary hearing pack which contained the basis of the case against him. The claimant was made aware that, depending on the facts established at the hearing, the outcome could be possible dismissal. The tribunal considered that step 1 of the statutory dismissal procedure was complied with.
54. The disciplinary meeting took place on 19 January 2012. The claimant was given the right to be accompanied by his trade union representative and he exercised that right. The respondent’s concerns were outlined to him. The claimant was given an opportunity to explain his case. The tribunal concluded that step 2 of the statutory procedure was completed.
55. The claimant was given a right of appeal and exercised that right. He was again given the right to be accompanied and an opportunity to outline his case. The tribunal was satisfied that step 3 of the statutory dismissal procedure was completed.
56. The tribunal then proceeded to consider whether the dismissal was fair in accordance with general principles. Firstly, the tribunal considered whether the respondent had shown the reason for dismissal. The respondent contended that the claimant was dismissed by reason of his conduct in relation to submission of travel claims, essentially the submission of false or excessive claims. During the appeal hearing and in his witness statement to the tribunal the claimant alleged that his dismissal was due to an incident on a firing range approximately one month before the date of his dismissal. Little or no further detail was given either at the appeal hearing or in the course of the tribunal proceedings as to how the claimant believed this incident led to the disciplinary proceedings against him and ultimately his dismissal.
57. Having considered carefully the evidence of the claimant and his witnesses and of the decision-makers in relation to the reason for his dismissal, the tribunal was satisfied that the respondent had shown that the claimant’s conduct was the reason for dismissal. The conduct of the employee is a potentially fair reason for dismissal under article 130(2) of the Order.
58. The tribunal then had to determine whether the dismissal was fair or unfair in all the circumstances in accordance with article 130(4) of the Order. The tribunal followed the steps outlined in the Rogan case. We reminded ourselves, in particular, that we must not substitute our own view for that of the employer.
59. The tribunal began by considering whether the employer in this case had established its belief in the particular misconduct. The tribunal had the opportunity to assess the evidence of the decision-makers Colonel A and Brigadier B when it was tested in the course of their lengthy cross-examination during the hearing. It was clear from the evidence of both that they considered the second disciplinary charge (relating to not claiming for travel in the most economical manner) to be the most serious and the one which most influenced their respective decisions. Accordingly, it was this disciplinary charge on which the tribunal focused. The tribunal was satisfied that both decision-makers had formed a genuine belief that the claimant was guilty of the misconduct alleged against him. In particular, the tribunal considered it was clear that both Colonel A and Brigadier B had formed the view that the claimant had claimed excessive miles, essentially that he had committed false claims for mileage and that, in their view, the claimant had not given a satisfactory explanation for such excessive claiming.
60. The next issue for the tribunal to determine was whether the decision-makers had reasonable grounds on which to sustain this belief. In this regard, the tribunal was mindful of the guidance given by the Court of Appeal in the Rogan case that “the judgment as to the weight to be given to evidence was for the Disciplinary Panel and not for the tribunal”. The case against the claimant was outlined in the disciplinary pack which was made available to the claimant and to Colonel A before the disciplinary hearing. In relation to the second charge, the case was presented on the basis of a comparison between the shortest and quickest routes between the claimant’s home and the relevant bases and the number of miles and sums claimed by the claimant. The difference between the two was characterised as excess miles which the claimant had no entitlement to claim.
61. The claimant was given an opportunity to answer this case. The claimant essentially did not dispute that he had claimed for mileage beyond the shortest/fastest possible route. His response consisted of three main points. Firstly, that he varied his route from home to camp due to security reasons. Secondly, that he claimed for travel within camp. Thirdly, the claimant stated that other officers claimed in exactly the same manner. Each of these points were explored with both decision-makers in considerable detail during cross-examination at the hearing.
62. It was clear to the tribunal that, essentially, the decision-makers did not accept the explanations put forward by the claimant in the course of the disciplinary hearing and the appeal hearing. It is a matter for the decision-makers rather than the tribunal to determine the weight to be given to the claimant’s explanations. Their reasons for rejecting these explanations were to some extent set out and explained in their decision letters issued to the claimant. These reasons were further elaborated upon in the course of the tribunal hearing. Brigadier B who heard the appeal was particularly clear in his evidence that he found the claimant’s explanation regarding route variation unconvincing since the claimant had always claimed exactly the same mileage from his home to base whilst arguing that he had varied his routes. Brigadier B found this to be inconsistent. In relation to travel within camp, Brigadier B accepted that there was no policy in relation to claims for such travel, but his view was that, in the absence of any policy permitting claims, there was no basis for claiming for such travel. Finally, in relation to the allegation that other officers were claiming in the same manner, the Brigadier’s view was that it was not practicable for such a general allegation to be investigated in the absence of names or other details being identified by the claimant. The decision-makers also relied on the fact that regular audit checks were carried out by the respondent on a proportion of all travel claims submitted.
63. Having considered the evidence of Brigadier B in particular, who was the final decision-maker in the case, the tribunal was satisfied that he did have reasonable grounds to sustain his belief that the claimant was guilty of the main disciplinary charge against him.
64. The tribunal then had to consider whether the respondent had carried out as much investigation into the matter as was reasonable in all the circumstances. In this regard, the tribunal was mindful of the cautionary note in the Salford case that it is particularly important that employers take seriously their responsibilities to carry out a fair investigation where the employee’s future ability to pursue their career was at stake, which was the case here.
65. The disciplinary investigation in this case was carried out by Mr E the claimant’s line manager who was unable to attend the tribunal hearing due to illness. This was unfortunate. An investigatory interview was held with the claimant on 18 August 2011. The claimant was also invited to attend another investigatory interview so that Mr E could clarify what his alternative routes were and what was his normal route to work. Despite the fact that these issues were clearly relevant to the claimant’s case in his defence, the claimant refused to attend for this further interview.
66. One of the matters explored by Mr E during his investigation was the comparison between the shortest/fastest routes between the claimant’s home and the relevant bases (on the basis of standard RAC route maps) as compared with the number of miles claimed by the claimant. This was then written up in the form of a spreadsheet. The numerical outcome of this analysis was not seriously disputed by the claimant. Rather, the claimant sought to give a number of explanations for the difference between the shortest/fastest routes and the number of miles claimed by him. The tribunal was satisfied that over the course of the disciplinary process as a whole, the claimant was given ample opportunity to explain his travel claims and particularly why they were over and above the shortest/fastest routes.
67. The tribunal is satisfied overall that the amount of investigation carried out by the respondent in relation to these matters was reasonable in all the circumstances.
68. The tribunal then had to consider whether the misconduct which the respondent found proven against the claimant was sufficient grounds for his dismissal. Essentially, the claimant was found guilty of submitting false claims for travel expenses. As outlined above, the test is usually expressed as being whether dismissal fell within the band of reasonable responses of a reasonable employer. The evidence of the decision-makers in relation to sanction was that, given the claimant’s position as a civil servant, they considered his conduct in relation to travel claims over a period of 14 months which involved the use of public money to be a serious breach of trust which they considered to be intolerable. Brigadier B’s decision letter confirmed that mitigation, in particular the claimant’s difficult family/welfare situation had been considered by him, but he nevertheless concluded that dismissal was justified.
69. In considering this question of the band of reasonable responses, the tribunal was of the view that this was indeed a case where reasonable employers could have imposed a range of different sanctions. In particular, the amount of money involved was not huge and the tribunal believed that other reasonable employers could have decided that it was sufficient to impose a final warning perhaps along with other sanctions such as repayment of the money in question. Indeed, it was clear from the material presented in the disciplinary pack that the MOD itself had taken that approach in other similar cases. However, on the other hand, the outcome of those cases where the deciding officer considered that there was a breach of trust was dismissal. The tribunal was also mindful that MOD staff were warned when submitting any travel claim that a false statement in such a claim could lead to disciplinary action which could include dismissal. Since the system for submission of travel claims did not involve any sign off by the manager, the MOD was heavily reliant on officers who submitted travel claims doing so in a completely honest manner. In short, the tribunal was satisfied that the issue of trust in this area was of crucial importance.
70. The tribunal ultimately concluded that summary dismissal did fall within the band of reasonable responses of a reasonable employer in the circumstances of this case. However, the tribunal does with to make it clear that it considered that dismissal in this case was certainly very much at the harsh end of that band of reasonable responses and the tribunal could therefore understand why the claimant considered the sanction to be harsh.
71. In summary, the tribunal has concluded that the dismissal of the claimant was fair in all the circumstances.
72. Accordingly, the claimant’s claim of unfair dismissal is therefore dismissed and there is no need for the tribunal to consider the question of remedy.
Employment Judge:
Date and place of hearing: 9, 10 and 11 December 2013,
5 and 6 March 2014, Belfast.
Date decision recorded in register and issued to parties:
Case ref No. 1281/12IT
INDUSTRIAL TRIBUNALS (NI) Order 1996
Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 - Case Management
RESTRICTED REPORTING ORDER
1. This Order prohibits the publication in Northern Ireland of identifying matter in a written publication available to the public or its inclusion in a relevant programme for reception in Northern Ireland in relation to the persons specified in paragraph 2.
2. (a) Claimant’s identity
(b) Witnesses’ identities
(c) Any location(s) or travel route(s) referred to in evidence
3. The words “identifying matter” and “written publication” have the meanings set out in Article 13(2) of the Industrial Tribunals (Northern Ireland) Order 1996.
4. This Order shall remain in force until the promulgation of the final decision of the tribunal on the originating application to which it relates unless revoked earlier.
5. If any identifying matter is published or included in a relevant programme in contravention of this restricted reporting order the following persons shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale -
(a) In the case of publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;
(b) In a case of publication in any other form, the person publishing the matter; and
(d) In a case of matter included in a relevant programme -
(i) Any body corporate engaged in providing the service in which the programme is included and
(ii) Any person having functions in relation to the programme corresponding to those of an editor of a newspaper.
Chairman:
Date: