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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Smyth v Northern Ireland Fire & Rescue... [2014] NIIT 84_14IT (28 May 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/84_14IT.html
Cite as: [2014] NIIT 84_14IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 84/14
CLAIMANT: Raymond Smyth
RESPONDENT: Northern Ireland Fire & Rescue Service
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed and that compensation as calculated in this decision is awarded to the claimant amounting to £8,140.56.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Mr R Hanna
Mr F Murtagh
Appearances:
The claimant was represented by Mr G Grainger, Barrister-at-Law, instructed by Rosemary Connolly & Company, Solicitors.
The respondent was represented by Mr M McEvoy, Barrister-at-Law, instructed by Belfast City Council Legal Department.
Background
1. The claimant was a retained (part-time) fire-fighter for approximately 26 years until his dismissal by the respondent on 25 September 2013. For the last 13 years he was a Crew Commander.
2. The claimant had been interviewed by the PSNI in or about January 2010 in connection with the possession and possibly the re-sale of goods which he had purchased on the internet. Some of these goods were found to be counterfeit. Those goods were seized at the time by the PSNI. The claimant did not inform the respondent at that stage.
3. Eventually this matter came to the District Court in 2013. The claimant informed the respondent when he eventually received a summons to attend court in 2013. The claimant had been charged with 18 offences and he was convicted. One of the eighteen convictions was subject to a criminal appeal throughout the disciplinary process and the respondent took into account only the first 17 convictions in its consideration of the matter and in its decision to dismiss the claimant.
4. No formal Certificate of Conviction was obtained by the respondent at any stage and it was not produced to this tribunal. However, the parties agreed that the relevant 17 convictions were for possession of goods contrary to Section 92(1)(c) of the Trades Marks Act 1994.
5. The claimant was suspended. The matter was investigated and he was dismissed on notice. The dismissal was upheld on appeal.
6. The claimant alleges that the respondent’s decision to dismiss him was an unfair dismissal for the purposes of the Employment Rights (Northern Ireland) Order 1996.
Procedure
7. As is the practice now with unfair dismissal claims, this claim was considered at a Telephone Conference Case Management Discussion on 14 March 2014 at which the claimant and respondent were represented by their respective solicitors.
8. The substantive hearing was listed for 6 - 9 May 2014. The Giro D'Italia and the consequent road closures made 9 May 2014 impracticable and the parties were notified accordingly. In the event, the hearing concluded at lunchtime on 8 May 2014 after two and a half days. That was followed by a panel meeting on the afternoon of 8 May 2014. A further panel meeting was held on 15 May 2014 to consider the legal and factual issues arising in this matter and to reach this decision.
9. At the Case Management Discussion, the parties were directed to exchange witness statements simultaneously by 25 April 2014. Those statements were to be a complete statement of the evidence to be tendered by that witness (including the claimant) in relation to both liability and remedy. The statements were to form the entire evidence-in-chief of each witness and it was intended that the witnesses, once they swore or affirmed, and once they adopted their statements, would move immediately to cross-examination and re-examination. Directions were also issued in relation to interlocutory matters.
10. The parties exchanged witness statements from:-
(a) the claimant;
(b) Mr Eugene McNally;
(c) Mr Lloyd Crawford;
(d) Mr John Allen; and
(e) Mr Christopher Kerr
11. The respondent sought and was granted leave to adduce additional evidence-in-chief from Mr Allen to address the statement given by Mr McNally which had not been flagged up in advance of the exchange of witness statements. The respondent also sought and was granted leave to call an additional witness who gave oral evidence-in-chief and was subsequently cross-examined. That additional witness was Assistant Chief Fire Officer Dale Anthony Ashford.
Relevant law
Unfair dismissal
12. The proper approach for an Employment Tribunal to take when considering the fairness of a misconduct dismissal is well settled and was considered by the Court of Appeal in Rogan v South Eastern Health & Social Care Trust [2009] NICA 47.
13. Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-
“130-(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -
(a) the reason (or if more than one, the principal reason) for the dismissal and
(b) that is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) a reason falls within this paragraph if it -
(b) relates to the conduct of the employee,
(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 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.”
14. The Court of Appeal in Rogan approved the earlier decision of Court in Dobbin v Citybus Ltd [2008] NICA 42 where the Court held:-
“(49) The correct approach to [equivalent GB legislation] was settled in two principal cases - British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 and explained and refined, principally in the judgements of Mummery LJ, in two further cases Foley v Post Office and HSBC Bank PLc (formerly Midland Bank) -v- Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111.
(50) In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-
“Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:-
(1) the starting point should always be the words of [equivalent GB legislation] 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, and another quite reasonably take another;
(5) the function of an industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band it is unfair.”
(51) To that may be added the remarks of Arnold J in British Home Stores where in the context of a misconduct case he stated:-
“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, it 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.”
15. In Bowater v North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal considered a decision of the Employment Appeal Tribunal which had set aside a decision of an employment tribunal. The employment tribunal had determined that a remark made by a nurse in an Accident & Emergency Department was not a sufficient basis for a fair dismissal. Lord Justice Longmore stated at Paragraph 18 of the decision that:-
“I agree with Stanley Burnton LJ that dismissal of the appellant for her lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case. The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come. But the employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the ET 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.”
He continued at Paragraph 19:-
“It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET. It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt, sometimes, difficult and borderline decisions in relation to the fairness of dismissal.”
16. In Fuller v London Borough at Brent [2011] EWCA Civ 267, the Court of Appeal again considered a decision of the Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the basis that the employment tribunal had substituted its view for the decision of an objective reasonable employer. Lord Justice Mummery stated at Paragraph 7 of the decision that:-
“In brief the council’s case on appeal is that the ET erred in law. It did not apply to the circumstances existing at the time of Mrs Fuller’s dismissal the objective standard encapsulated in the concept of the ‘range or band of reasonable responses’. That favourite form of words is not statutory or mandatory. Its appearance in most ET judgments in unfair dismissal is a reassurance of objectivity.”
At Paragraph 38 of the decision, he continued:-
“On a proper self-direction of law I accept that a reasonable ET could properly conclude that the council’s dismissal was outside the band or range of reasonable responses and that it was unfair. If, as I hold, the ET applied the objective test, it did not err in law and there was no ground on which the EAT was entitled to set it aside or to dismiss Mrs Fuller’s claim.”
17. In Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721, the Court of Appeal again considered a decision of an Employment Appeal Tribunal which set aside the decision of an employment tribunal on the ground that that Tribunal had substituted their judgment of what was a fair dismissal for that of a reasonable employer. At Paragraph 13 of the judgment, Lord Justice Elias stated:-
“Section 98(4) focuses on the need for an employer to act reasonably in all the circumstances. In A v B [2003] IRLR 405, the EAT (Elias J presiding) held that the relevant circumstances include the gravity of the charge and their potential effect upon the employee. So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as on the facts of that case, the employee’s reputation or ability to work in his or her chosen field of employment is potentially apposite”
“In A v B the EAT said this:- Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course even in the most serious cases it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiry should focus no less on any potential evidence that may exculpate or least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him.”
Consistency
18. In the decision in Post Office v Fennell [1981] IRLR 221, the Court of Appeal in Great Britain stated:-
“It seems to me that the expression equity as there used comprehends the concept that employees who misbehave in much the same way should have meted out to them much the same punishment, and it seems to me that an industrial 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.”
19. Harvey on Industrial Relations and Employment Law, Division DI (1040) suggests that this issue of consistency should be approached with an element of caution. First, Harvey states that the allegedly similar situations must be truly similar. It quotes the decision of the Great Britain Court of Appeal in Paul v East Surrey District Health Authority [1995] IRLR 305:-
“I consider that all industrial tribunals would be wise to heed the warning of Waterhouse J, giving the judgment of the Employment Appeal Tribunal in Hadjioannou v Coral Casinos Ltd [1981] IRLR 352 where in Paragraph 25 he said:-
‘We accept that analysis by counsel for the respondents of the potential relevance of arguments based on disparity. We should add, however, as counsel has urged upon us, that industrial tribunals would be wise to scrutinise arguments based upon disparity with particular care. It is only in the limited circumstances that we have indicated that the argument is likely to be relevant, 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 the argument. The danger of the argument is that a tribunal may be lead away from a proper consideration of the issues raised by [the statutory test]. The emphasis in that section is upon the particular circumstances of the individual employee’s case. It would be most regrettable if tribunals or employers were to be encouraged to adopt rules of thumb, or codes, for dealing with industrial relation problems and, in particular, issues arising when dismissal is being considered. It is of the highest importance that flexibility should be retained, and we hope that nothing that we say in the course of our judgment will encourage employers or tribunals to think that a tariff approach to industrial misconduct is appropriate. One has only to consider for a moment the dangers of the tariff approach in other spheres of law to realise how inappropriate it would be to import this into this particular legislation.’.”
20. The quoted extract from the Coral Casinos case (above) refers to “the limited circumstances that we have indicated”. A correct understanding of that court’s view of ‘truly similar’ or ‘sufficiently similar’ therefore has to read in the context of the facts of that case.
In that case, the dismissal was for a breach of the internal rule against socialising with members of the casino club. The EAT did not interfere with the ET’s decision that none of the other cases had been essentially similar.
One other employee had been permitted to resign where the relevant offence involved theft. In the view of the EAT he had been constructively dismissed. Another employee had been suspended pending trial for offences under the Gaming Act and while the trial had not taken place, no inferences could be drawn from that case. Three other employees had married ‘punters’ or daughters of ‘punters’. In one such case, no reasonable inference could be drawn because of confusion about a resignation.
In one of the other two such cases, it could have been assumed that the manager had been told of the relationship. In the other, the marriage had not been discovered until three months after the relevant dismissal. In two other cases, some time previously, two employees had received final warnings for gambling in other casinos. Finally, two other employees had been accused of socialising with female customers. One was a young and inexperienced member of staff who had received a warning and a disciplinary transfer. In the other case, the employee had been seen drinking in a public house on one or two occasions in the company of a member of the casino club. The evidence was held not to support deliberate socialising. He was kept under review and eventually resigned.
There is nothing in this to support the proposition that the issue of ‘consistency’, which is described elsewhere as potentially important, is restricted (where criminal convictions are at issue) to identical criminal convictions under identical parts of an identical statute. Equally, there is nothing there that requires that a relevant criminal conviction must necessarily be for the same category of crime, eg assault, criminal damage, etc. The head note refers to ‘truly parallel circumstances’. It does not refer to ‘absolutely identical circumstances’. The possible relevance of consistency has to be judged carefully in the circumstances of each case, considering its relevance (if any) to the question of fairness against an objective standard.
21. The Court of Appeal in Paul went on to state:-
“An employer is entitled to take into account not only the nature of the conduct and the surrounding facts but also any mitigating personal circumstances affecting the employee concerned. The attitude of the employee to his conduct may be a relevant factor in deciding whether a repetition is likely. Thus an employee who admits that conduct proved is unacceptable and accepts advice and help to avoid a repetition may be regarded differently from one who refuses to accept responsibility for his actions, argues with management or makes unfounded suggestions that his fellow employees have conspired to accuse him falsely. I mention this because I consider that if the industrial tribunal in this case had had regard to these factors they would not have regarded the actions of the employers in the Mrs Rice case as disparate or have said that Mr Verling’s misconduct should have been treated just as seriously, if not more seriously, than Mr Paul’s.”
22. Harvey went onto state in Paragraph (1041) that an employer must have been aware of the conduct of the potential comparators before the argument of consistency can be raised. Then in Paragraph 1042, Harvey emphasised that, if an employer has consciously distinguished between two cases, dismissal can only be successfully challenged if there is no rational basis for the distinction made between the two cases. It referred to the decision of the GB Court of Appeal in Securicor Ltd v Smith [1989] IRLR 356. In that case, two Securicor employees were initially dismissed for a breach of cash-handling regulations in which four cash boxes were moved to the van at the same time rather than separately. On the internal appeal, one employee was reinstated. The tribunal and the EAT concluded that there was no distinction to be drawn between the two Securicor employees, both whom had signed for the four boxes and where only one of them had transported the boxes to the van. The Court of Appeal stated that:-
“In my view, in so concluding, the industrial tribunal asked itself the wrong questions. The question is whether or not the employers, in acting upon the findings and conclusions of the appeal panel, acted reasonably and within the band of reasonable responses.”
After referring to the decision in British Leyland UK Ltd v Swift [1981] IRLR 91, the Court of Appeal stated:-
“Put another way, in order to justify the finding which the Employment Appeal Tribunal made, it would be necessary to establish that the appeal panel’s decision was so irrational that no employer could reasonably have accepted it. The Employment Appeal Tribunal do not appear to have considered that question, although in form they did so in the passage that has been cited. What they did not seem to ask themselves was whether on the facts found by the appeal panel, and not disturbed by the industrial tribunal, the finding of the industrial tribunal was itself perverse and irrational. That is the question, which in my view, this Court has to answer. When posed in that form, it seems to me that the question is bound to be answered in the affirmative. Since no facts were found by the industrial tribunal to indicate that the factual basis of the appeal panel’s decision was wrong, it cannot be said that the appeal panel’s decision was perverse. The industrial tribunal substituted their own view of the facts and the conclusions to be drawn from them. This they were not entitled to do, although I accept that it would have been open to the appeal panel to have reached a different conclusion. They did not do so for rational and clear reasons, and the Employment Appeal Tribunal ought to have rejected the industrial tribunal’s reasoning was itself irrational.”
Lord Justice Balcome stated:-
“But it seems to me that there is here a clear rational basis for distinguishing between the cases of Mr Curry and Mr Smith (the two employees) and that basis is as was set out by the appeal tribunal itself.”
23. Finally, Harvey at Paragraph (1043) points out that even if there is a clear inconsistency in treatment, this is only one factor which may have to give way to the general need for flexibility in these matters. An employer who has been unduly lenient in the past may still be able to dismiss fairly in future notwithstanding the inconsistent treatment. In the case of United Distillers v Conlin [1992] IRLR 503, the EAT stated:-
“Some argument was addressed to us on the question whether there was a real inconsistency between the actions of the appellants in relation to other cases which had been referred to, and that of the respondent. For the present purpose, however, it seems to us that we must accept the finding of the industrial tribunal and give due weight to their view that there was a clear inconsistency. However, although inconsistency is an important consideration in disciplinary proceedings and, therefore, in considering whether a particular dismissal is unfair, it is also important that due flexibility should be preserved, and that the employer should remain entitled to consider each case on its merits. We have come to the view that the dismissal of the respondent was really an inevitable result of the repetition of an offence of dishonesty, so soon after the occasion on which he had received a final warning in respect of precisely the same offence. Such a dismissal cannot, in our opinion, reasonably be regarded as falling outwith the range of responses open to a reasonable employer in the circumstances.”
24. In short, the issue of consistency is an important factor to be considered by the industrial tribunal in terms of a claim of unfair dismissal. However, it is vital that the tribunal does not allow itself to be placed in a position where it imposes a tariff system on employers or into a position where it imposes on employers an absolute obligation to repeat previous lenient or careless behaviour on their part. The important issue throughout is the statutory test and the tribunal must be careful to apply that statutory test using the objective standard of a reasonable employer in all the circumstances of the case, including those circumstances which relate to the treatment of other employees.
25. In relation to the 17 relevant convictions, the tribunal was referred to Blackstone. It provides at Paragraph 6.102 that:-
“The Trades Marks Act 1994 Section 92
(1) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor -
...
(b) sells or lets for hire, offers or exposes for sale or hire or distributes goods which bear, or the packaging of which bears such a sign; or
(c) has in his possession, custody or control in the course of a business any such goods with a view to the doing of anything, by himself or another, which would be an offence under Paragraph (b).
(2) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor -
...
(c) has in his possession, custody or control in the course of a business any such material with a view to the doing of anything, by himself or another, which would be an offence under Paragraph (b).”
26. Blackstone states at Paragraph 6.106:-
“D must in all cases be shown to have acted with a view to gain or with an intent to cause loss to another. This is the same ulterior intent that is required under the Theft Act 1968 Sections 17 and 21, and must have the same meaning as it bears there. This may not necessarily mean, whoever, that D acted dishonesty, knowingly or fraudulently.
Under Section 92(5), it is a defence for D to prove that he believed on reasonable grounds that the use or proposed use of the offending sign concerned was not an infringement of the registered trademark. This applies both to cases in which D reasonably believes there is no such registered trademark and to cases in which he is aware of the trademark but unaware that it is being infringed (Johnstone [2003] 3 ALL ER 884). The burdens imposed here are persuasive and not merely evidential (Johnstone).
It does not follow that someone who is simply ignorant of the existence of a registered trademark, or who has not paid any attention to it, still less one who is being reckless of its existence has a defence under Section 92(5) (McCrudden [2005] EWCA Crim 466).”
27. In the House of Lords decision in R v Johnstone [2003] 1 WLR 1736, Lord Nicholls of Birkenhead pointed out that:-
“Counterfeiting is fraudulent trading. It is a serious contemporary problem. Counterfeiting has adverse economic effects on genuine trade. It also has adverse effects on consumers, in respect of the quality of goods and, sometimes, on the health and safety of consumers.”
He went onto state that:-
“The offences created by Section 92 have rightly been described as offences of ‘near absolute liability’. The prosecution is not required to prove intent to infringe a registered trademark.
(3) The offences attract a serious level of punishment : the maximum penalty on indictment of an unlimited fine or imprisonment of up to 10 years or both, together with the possibility of confiscation and Deprivation Orders.
(4) Those who trade in brand products are aware of the need to be on guard against counterfeit goods. They are aware of the need to deal with reputable suppliers and keep records and of the risks they take if they do not.
(5) The Section 92(5) defence relates to facts within the accused person’s own knowledge : his state of mind, and the reasons why he had the belief in question. His sources of supply are known to him.
(6) Conversely, by and large it is to be expected that those who supply traders with counterfeit products, if traceable at all by outside investigators, are unlikely to be co-operative. So, in practice, if the prosecution must prove that a trader acted dishonestly, fewer investigations will be undertaken and fewer prosecutions will take place.”
He went on to state:-
“In my view Factors (4) and (6) constitute compelling reasons why the Section 92(5) defence should place a persuasive burden on the accused person.”
That reference relates to a much higher burden being placed on the defendant than the normal evidential burden.
28. In Sliney v London Borough of Havering [2002] EWCA Crim 2558, the GB Court of Appeal considered Section 92. It determined:-
“(29) Nowhere in the section is there indicated any requirement of dishonesty, or bad faith on the part of the accused as an element of the offence ...
(30) ... In our view it is plain that S.92 is deliberately designed to extend to unauthorised use of trademarks even where there is no dishonesty involved. The fact that, no doubt, in counterfeiting offences of this kind dishonesty (or at least recklessness) may well be present in some cases is not conclusive; there are also cases - doubtless to be regarded at the bottom end of the scale - where dishonesty is not present at all. Dishonesty thus is not the gravamen of the offence.”
Criminal convictions
29. The LRA Code of Practice, Disciplinary and Grievance Procedures provides at Paragraph 46:-
“If an employee is charged with, or convicted of, a criminal offence outside his/her employment, this is not in itself reason for disciplinary action. The employer shall establish the facts of the case and consider whether the matter is serious enough to warrant starting the disciplinary/dismissal procedure. The main consideration should be whether the offence, or alleged offence, is one which makes the employee unsuitable for his/her type of work. Similarly, an employee should not be dismissed solely because he/she is absent from work as a result of being remanded in custody.”
30. While a dismissal is not automatically fair for the purposes of the 1996 Order where it is on the basis of a criminal conviction outside of and unrelated to the claimant’s employment, such a dismissal has on occasion been found to have been fair. For example, in Moore v C&A Modes [1981] IRLR 71, the EAT was considering a case of a worker in a clothing store who had been caught shoplifting at another store. The EAT confirmed that it was not perverse for an industrial tribunal to find that it had been reasonable for the employers to dismiss the shop worker in these circumstances. They stated:-
“Accordingly, while it is very sad that Mrs Moore should have been dismissed in this way after 20 years’ service, we cannot say that the industrial tribunal were wrong in law in their approach to the employer’s decision. It seems to us to be quite unreal to expect any employer in the retail trade not to dismiss someone who has, for 20 years, been an entrusted employee, who is reasonably believed to have been stealing just down the road, although not from the employers themselves, because nobody should be more alive than such an employee to the damage which is caused by what is commonly called shoplifting but what is no more or less than stealing when things are taken with the intent to take them and not to pay. Accordingly this appeal is dismissed.”
As indicated in the LRA Code, the issue appears to have been the direct relationship between the alleged offence and the nature of the employment and the suitability of that individual for that employment.
31. In B J Jones v R M Douglas Construction Ltd [1975] IRLR 175, an industrial tribunal was considering a claim of unfair dismissal from a mechanical plant engineer who had been convicted for dishonestly handling a stolen engine. The events for which he was convicted were not in any way connected with the claimant’s employment or with his place of work. The tribunal considered that given the claimant’s long and blameless record, the respondents had not acted reasonably in treating his conviction for an offence unconnected with work as a sufficient reason for dismissal. Although there were risks entailed in his continued employment as a plant engineer, since he had responsibility for ordering expensive equipment and dealt with a number of customers, these risks could have been avoided by demoting the claimant to his original basic grade of mechanic/fitter rather than by dismissing him. There was no evidence that such a course had been considered and within an organisation as large as the respondents, this should have been done.
Obviously, the precedent value of an industrial tribunal decision is extremely limited.
32. In X v Y [2004] IRLR 625, the respondent dismissed an individual for involvement in a criminal matter for which he had accepted a caution. He had concealed the existence of that caution. On the facts of that case it seems that there was a clear and specific link between the potential criminal offence for which he had received a caution, and the nature of his employment. Although the decision focused primarily on issues under the ECHR, the Court of Appeal determined that the dismissal was fair in those particular circumstances.
33. In Mathewson v RB Wilson Dental Laboratory Ltd [1988] IRLR 513, the Employment Appeal Tribunal was considering the case of a dental technician who had purchased cannabis during his lunch break and was arrested and charged shortly thereafter with the possession of drugs. He was subsequently convicted and fined. The dismissal was found to be fair by a majority of the tribunal. The EAT held:-
“We are not able to say that such a decision was perverse or that they had misdirected themselves in law. This is a situation where another tribunal might have reached a different conclusion. In our view, the industrial tribunal, acting as an industrial jury, determined whether in the particular circumstances of the case the decision to dismiss the employee fell within the band of reasonable responses, which a reasonable employer might have adopted. In our view, the industrial tribunal applied their mind to the reasonableness of the employer’s conduct in the particular circumstances and reached the conclusion that it was within the band of reasonable responses. In these circumstances we dismiss the appeal.”
The EAT had stated:-
“In our view, it is plain when the decision is read as a whole that the industrial tribunal had before them various aspects of the matter, mainly, involvement in the use of prohibited drugs; the intervention of the police; the admission by the appellant that he had purchased and was in the possession of cannabis; the possible influence on other members of staff; and the suitability of continuing to employ the appellant in a job for which he was employed. The majority of the industrial tribunal came to the conclusion that it could not be said, on the information before the employers at the time of the dismissal, that the reaction in dismissing the appellant summarily, although harsh, was outwith the band of reasonable responses.”
Administrative resources
34. In the case of Whitbread PLc v Hall [2001] IRLR 275, the Court of Appeal was considering a case of a manager who had been dismissed for gross misconduct. They stated:-
“It is of course, important not to place too heavy a procedural burden upon employers. The Employment Tribunal is required to take into account the size and administrative resources of the employer’s undertaking in deciding what falls within the band of reasonable procedural responses in each case. There are some cases of misconduct so heinous that even a large employer well versed in the best employment practices would be justified in taking the view that no explanation or mitigation would make any difference. But this was not such a case, and, as the House of Lords made in clear in Polkey, the one thing which the tribunal cannot do is to ask itself whether the outcome of a fair procedure would have been the same.”
Findings of fact
35. On 25 September 2012, the claimant informed Mr Spence, the Assistant Group Commander, by telephone call that he would be attending court to answer charges of having counterfeit goods which he had purchased on the internet. The claimant followed that up with a written notification.
36. On 4 October 2012, Area Commander Allen recommended to Assistant Chief Fire Officer Ashford that the claimant be suspended from duty on a precautionary basis. He set out the background to this recommendation in the e-mail, under the heading of ‘facts’. He included the phrase:-
“CC Smyth failed to notify his employer in a timely manner and when he did notify his employer the information provided was inaccurate.”
That does suggest an element of pre-judgment in someone who was later to reach the disciplinary decision. It was an unfortunate choice of words. The word ‘allegedly’ could usefully have been employed. However, the tribunal does not conclude from this that Mr Allen had pre-judged the issue.
The second part of the same letter does refer to ‘allegations’ and does point out that they were at that stage ‘not proven’.
37. The claimant was placed on precautionary suspension from 4 October 2012 to allow an investigation into several charges; namely:-
“- a case of criminal offence [sic] in relation to you was brought before Armagh Court on 03 October 2012;
- you failed to inform Northern Ireland Fire and Rescue Service in a timely matter [sic] that you were under investigation by PSNI and it is alleged you provided false information in relation to the criminal investigation.”
38. Assistant Group Commander Weir attended the first court hearing on 21 January 2013. The claimant contested the charges against him but was found guilty. Mr Weir reported to the respondent that the District Judge ‘heavily criticised CC Smyth for his ‘unbelievable’ defence argument that he was unaware that the goods he sold on the internet were fake or counterfeit’. The Judge stated that ‘his defence did not hold any water and that he had committed these offences on an industrial scale’.
Sentencing was deferred. The tribunal concludes, having heard the claimant’s cross-examination, that this note refers to a Section 92(5) defence in which the District Judge did not accept that the claimant had had a reasonable belief that the goods were legal. The tribunal notes that this does not relate to a specific finding of ‘dishonesty’ on the claimant’s part. The tribunal also notes that the respondent did not direct itself to the precise nature of the offences and to whether or not dishonesty was a necessary component of any conviction.
39. Group Commander Lloyd Crawford was appointed as an investigating officer by AC Allen on 29 January 2013 to investigate one allegation:-
“That you were involved in a court case heard at Armagh Court on or around 23rd January 2013 where you were found guilty of a number of criminal charges.”
No other allegation was raised at this point in the proceedings.
40. It, however, seems clear that in the earlier letter dated 4 October 2012 notifying the claimant of his suspension, the letter stated that the suspension was to allow for a full investigation of two different allegations, ie:-
“A case of criminal offence in relation to you was brought before Armagh Court on 3rd of October 2012.
You failed to inform Northern Ireland Fire & Rescue Service in a timely manner that you were under investigation by PSNI and it is alleged that you provided false information in relation to the criminal investigation.”
41. The claimant was invited to attend an investigatory meeting and was given the opportunity of representation by a trade union representative or a work colleague.
42. Mr Crawford accepted that the second charge had been raised by him on the advice of Mrs Marina Hughes from the respondent’s HR Department. It is not clear why a second charge was part of the suspension on 4 October 2012, and then disappeared from the investigation process on 29 January 2013, only to re-appear later.
43. On 15 February 2013, Mr Crawford conducted an investigatory interview with the claimant. The claimant was represented by Mr David Nichol of his trade union and notes were taken. The claimant confirmed the matter was first raised by the police in January 2010. He stated that there had been no further sales following that date up to the date of the investigatory interview. He stated that he had heard nothing further in relation to this matter for two years until the examination of the goods had been completed. He stated that he had not been aware of any need to inform the respondent of potential criminal charges but had been advised by his trade union representative to advise the respondent on receipt of the summons. He stated that he had not been aware of the Staff Code of Conduct or the Personal Qualities and Attributes Assessment document.
44. The claimant stated in the course of this interview that he had bought the items in good faith on the internet from what he assumed was a genuine site. He stated that only a limited number of items were deemed to be counterfeit but that each item attracted a number of separate trademark charges. His trade union representative repeated this assertion and stressed that the claimant had advised him that he had simply sold on some items which he had purchased on the internet and which he had believed to be genuine. The claimant stated again that he did not knowingly pass on any counterfeit goods to anyone and asserted that he was innocent of all charges.
45. Following that meeting, Mr Crawford determined that no further action should be taken until after sentencing had been completed and a Certificate of Conviction had been obtained. No Certificate of Conviction was in fact obtained by the respondent.
46. Mr Weir attended at the sentencing hearing and provided a second note for the respondent’s consideration. Mr Weir stated:-
“The Judge commented on a plea for leniency from CC Smyth’s solicitor by stating that reports from the Probation Service said CC Smyth was a medium risk to re-offend as he was a risk taker. The Judge also said that his age, previous clear record and his stable family background tended to make him rule out a custodial sentence. Also several references as to his good character made him not opt for custodial sentence. He also ruled out community service as CC Smyth worked in the Northern Ireland Fire & Rescue Service and the local council in a community service capacity. Therefore he had concluded that a financial punishment was appropriate and fined CC Smyth on each of the 17 counterfeit goods charges.”
The note then refers to other matters which were not taken into account in the disciplinary proceedings.
47. The claimant remained on precautionary suspension throughout this process. On 13 May 2013, Mr Crawford invited him to a further investigatory meeting on 28 May 2013 to discuss the one allegation:-
“That you were involved in a court case held at Armagh Court on or around 23rd of January 2013 where you were found guilty of a number of criminal charges.”
48. Mr Crawford did not have and did not seek formal Certificates of Conviction. He was shown paperwork which simply related to the payment of fines and referred to ‘possess items - breach register trademark’. Those documents indicated that a total amount of £3,500.00 was due by way of fines. The claimant was referred to the two notes from Mr Weir and was asked if the Judge had made those comments. The claimant confirmed that he had made those comments but that he disputed the validity of those comments. He confirmed that he was appealing against a conviction on an 18th charge which was not taken into account in the subsequent disciplinary process. He stated that he was not aware of any civil action from the owners of the copyright against him.
At the conclusion of the investigatory interview the trade union representative asked if the claimant could present documentation supporting his assertion that he had believed the items he had been selling on EBay were genuine. Mr Crawford advised that that documentation could be forwarded and would be included in the file for consideration. Mr Crawford advised the trade union representative this could be submitted as soon as possible and certainly within seven days of the hearing on 28 May 2013.
49. Despite that assurance that further documents could be submitted for consideration within seven days of 28 May 2013, the disciplinary investigation report was completed on that day, 28 May 2013, although it may have been typed on 29 May 2014.
50. That investigation report referred to the facts of the case. It stated (wrongly) that the claimant had been tried on a number of charges of possessing and selling counterfeit goods. The claimant had in fact been convicted of charges of possession alone. The subsequent wording of the report does seem to indicate that Mr Crawford was aware of the limited nature of the convictions in that they related only to possession but it is worrying that there is any confusion at all in the wording of the report in relation to the precise nature of the convictions. It is also worrying that no opportunity was taken to obtain a precise Certificate of Conviction. It is even more worrying that the claimant’s argument that he had been ‘duped’, and that he had believed that the goods were genuine, was not properly investigated. Mr Crawford did not wait for the submission of relevant documents and did not refer to them.
The report refers to the reported remarks of the District Judge and of the Probation Officer. It referred to various policies, including the staff Code of Conduct and the ‘National Fire-fighters Selection, Personal Qualities and Attributes’ (‘PQA’). It also referred to Article 18 of the Fire & Rescue Services (Northern Ireland) Order 2006 which defines the power of entry which would appear to have been exercised in practice by Crew Commanders.
It recommended a Level 3 disciplinary hearing to be heard by an Area Commander to consider the allegations against the claimant. It did not, as would have been expected, recommend specific charges to be made against the claimant but simply recommended a hearing.
51. Article 18 of the Order was not raised with the claimant or the claimant’s representative for their comment in the course of the investigatory hearings. The handwritten notes compiled by Mr Crawford in the course of this investigation were not retained. No specific rationale for the recommendation, which was in itself vague, was included by Mr Crawford in his report.
52. At the industrial tribunal hearing, Mr Allen who was to undertake the disciplinary hearing and reach a disciplinary decision was allowed to give additional oral evidence-in-chief to deal with the witness statement from Mr McNally. That witness statement, which was exchanged in accordance with the directions of the Case Management Discussion described an alleged meeting between Mr Allen and member of the Blue and Red Watch in Newry Fire Station. No date was given in the witness statement for that meeting. Mr McNally stated that in the course of that conversation in which Mr Allen was demonstrating a new motorbike, which he had recently acquired, Mr Allen stated that:-
“There’s a bad boy in Banbridge that he would be sacking.”
And
“That boy will be going.”
Mr McNally alleged that at the stage this conversation occurred the criminal proceedings were still ongoing in the District Court and that the conversation demonstrated pre-judgment and bias on the part of Mr Allen.
53. Mr Allen in his additional oral evidence-in-chief produced a new vehicle sales order which related to the purchase of a Harley Davidson motorbike. That sales order was dated 3 August 2013 and Mr Allen stated on oath that he had taken possession of the bike approximately one week later, probably on 10 August 2013. He stated that this was therefore the very earliest date that the alleged conversation could have taken place. That would have necessarily post dated the dismissal of the claimant. He also denied that this conversation did or could have taken place. He stated he would not have pre-judged the issue and would not have made those remarks.
54. Mr McNally in the course of his cross-examination accepted that his witness statement contained no date for the alleged conversation but maintained that it had, because of the terms used, pre-dated the disciplinary determination. He stated that it could possibly have occurred on 26 June 2013. When asked by the Vice President what motorcycle Mr Allen had been using during this alleged conversation, he stated that it was an ‘American easy-rider type’. The tribunal notes that the new vehicle sales order indicates that Mr Allen had traded in a BMW trail bike for a Harley Davidson Soft Tail. It is highly unlikely that a BMW trail bike could have been easily mistaken for an ‘American easy-rider style’ motorbike. It is therefore likely that Mr McNally was referring to a Harley Davidson.
55. The terminology used by Mr Allen in part of his recommendation for suspension does indicate a possible element of pre-judgement. It is unclear whether it was actual pre-judgment or simply a poor choice of words. Given the second part of that document, the latter seems much more likely. The issue of the alleged meeting in Newry Fire Station is a more difficult one to resolve. Both parties steadfastly maintain their versions of events. The documentary evidence, however, seems to support Mr Allen’s version, in that unless he took possession of a valuable motorbike in advance of the date shown on the new vehicle sales order, the conversation could not have taken place before the dismissal, as alleged by Mr McNally. As against that, either Mr Allen or indeed the claimant could have sought the attendance, if necessary by Witness Attendance Order, of those other individuals who were allegedly present during the conversation to support one or the other version of events. That has not been done and the tribunal has to approach this issue without such corroborative evidence. The tribunal is, in any event, unsure that this conversation took place as alleged. The tribunal therefore, on the balance of probabilities, concludes that the alleged conversation, if it took place at all, did not take place until after the dismissal and it cannot therefore provide any substantial evidence of pre-judgment or bias on the part of Mr Allen. It seems that a certain amount of bad blood existed between Mr Allen and Mr McNally. Mr Allen did make the accusation in his cross-examination that Mr McNally was known to record conversations. While this was denied by Mr McNally and while Mr McNally protested that he had the highest regard for Mr Allen, it seems clear that there appears to be a history between the two individuals which may or may not have had some impact on all of this.
56. The tribunal, in any event, notes that even if were to be determined that Mr Allen had to some extent pre-judged the issue, the decision to dismiss went on appeal and no such allegation of pre-judgment or bias is made against Mr Kerr who heard that appeal.
57. Mr Allen invited the claimant to a disciplinary hearing on 28 June 2013. He was advised by Mrs Marina Hughes of the respondent’s HR Department.
58. The invitation letter set out two different charges which were to be considered:-
“You are convicted in a Criminal Court of a number of offences relating to ‘possessing items which were in breach of a registered trademark’ and one charge of ‘possession of criminal property’. It is alleged that such a conviction has damaged the reputation of NIFRS and brought into question your suitability for employment.
It is alleged that you failed to inform Northern Ireland Fire & Rescue Service in a timely manner that you were under investigation by PSNI.”
It was accepted by Mr Allen that the disciplinary process considered only the first 17 convictions and not the 18th conviction which was itself subject to an appeal. The allegation of providing false information which had appeared earlier in the process was not pursued.
59. Mrs Marina Hughes attended the disciplinary hearing to advise Mr Allen. A Mrs Blevin also attended as a note taker. Despite that fact, the handwritten notes of Mrs Blevin were not retained and Mr Allen was not aware of what became of them and had not made any enquiries as to their whereabouts.
60. The claimant was represented by Mr Nicholl, his trade union representative. Both confirmed that they had had sufficient time to prepare for the hearing and that they were ready to proceed. The charges were outlined and it was stated that the first charge was one of potential gross misconduct and thus summary dismissal was a potential outcome. It was necessarily then clear that the second charge was a more minor charge in the view of the respondent. Mr Allen stated he had to take into account the Code of Conduct and the PQA document, together with the power of entry contained within Article 18 of the Fire & Rescue Services (Northern Ireland) Order 2006. That power of entry applies to any fire-fighter on duty but it seems clear from the evidence of the respondent that this power is one which is, in practical terms, exercised by the officer commanding the first response to any incident.
61. The claimant stressed that he had never admitted that he had knowingly bought and sold goods which he knew to be in breach of a trademark. He explained that there were so many charges and convictions because each different logo and label constituted a separate breach of the legislation. Therefore, several charges appeared in relation to an individual item of clothing. He stated that there was no evidence to establish that he had damaged the reputation of NIFRS and there was no evidence of any press reports or of any wider public knowledge. He stated that he had not been aware of any requirement to notify the respondent of potential prosecution. He had done so once he was advised by his trade union representative to do so. He stressed his clear record and referred to other recent cases involving NIFRS personnel who had been dealt with more leniently.
It is clear from the evidence given by Mr Allen that he had been aware that one colleague of the claimant had been convicted of assault occasioning grievous bodily harm. This had been brought specifically to his attention. His witness statement suggested that because of procedural discrepancies in the disciplinary process, the fire-fighter convicted of this serious offence simply received a final written warning. The statement and Mr Allen’s responses in cross-examination sought to minimise this conviction because it involved ‘a small number of people with specific relationship issues’. It therefore was not comparable to a conviction which was ‘basically one of dishonesty’.
Mr Allen was also aware of another fire-fighter, again in the same station, who had been charged with various offences arising out of a dispute with a domestic partner. Although this was part of his area of responsibility, Mr Allen told the tribunal that he had thought at the time of the disciplinary hearing that all charges had been withdrawn. He stated he had been unaware that there had been a conviction for criminal damage. It is unclear why Mr Allen, or the respondent generally, had not fully acquainted themselves with the outcome of these proceedings, perhaps by sending Mr Weir to take notes, as in the present case.
62. On further questioning, the claimant stressed again that he did not think he had done anything wrong although he had been found guilty. Mr Nicholl stated that it might be possible to have a full copy of the Judge’s summary through the claimant’s solicitor in the criminal trial. There is no evidence that Mr Allen sought to obtain further details from the solicitor in that respect. That was despite the fact that Mr Allen would have been in the possession of a letter from Ferris & Company of 27 June 2013 in which the solicitor had stated:-
“Writer was in court at the time of the ultimate deposition of the Magistrates Court matter and what was evident and prevalent in the Judge’s mind was Mr Smyth’s impeccably good character, history and clear record. This was evident in the Learned District Judge subsequent imposition of sentence. Should you require anything further please do not hesitate to contact us.”
Despite that offer from the claimant’s solicitor of further assistance and clarification, that was not taken up by Mr Allen.
In relation to the Probation Officer’s remarks about him being a ‘medium risk to offend’, the claimant stated that this had been taken out of context and that the Probation Officer had spent only 10 minutes with him. It seems clear that the evidence before the appeal hearing was that this 10 minute meeting was a telephone conversation. It is unclear whether this was made clear at this stage but it is likely that it was. The Probation Officer’s mother had died and therefore he had not followed up the meeting.
63. Mr Allen stated that he needed time to consider this issue.
64. In relation to the allegations of inconsistency in approach, Mr Allen appears to have delegated this matter completely to his HR adviser. He asked that HR adviser to research cases of possession of counterfeit goods. That seems to the tribunal to have been a pedantic and highly restricted approach to the issue of consistency. The HR adviser said there were no such cases. Mr Allen then asked her to look into cases of alleged ‘financial impropriety’. It is not clear what that meant. The HR adviser told him that there were no similar cases. His consideration of consistency stopped at that point. He did not ask for details of any cases where individuals had been convicted of criminal offences which did or which might have concerned the public or which might have brought NIFRS into disrepute. He did not ask for details of any criminal convictions which might have brought an employee’s suitability for employment into question. He accepted that the claimant had raised a specific case of a colleague convicted of GBH. He simply did not believe it was a fair and accurate comparison. He stated in relation to another matter, ie the case of a different fire-fighter, that he had not been aware of a conviction for criminal damage and that he had been aware of other charges which he stated had been withdrawn. The particular fire-fighter was within Mr Allen’s area of command.
65. In his report, Mr Allen described the claimant’s convictions as being in essence ‘an issue of dishonesty’. He stated that he had to consider whether the claimant’s convictions would be viewed as honest or dishonest behaviour by the commercial sector, local community, internal colleagues and external partners. He accepted that while there was no press coverage of this incident he still had to consider the potential impact on the corporate reputation of NIFRS. He also took into account the powers open to a fire-fighter under Article 18 of the 2006 Order.
66. In relation to the issue of consistency, he stated that he felt that the issue of the case of assault was sufficiently different. He also stated that he considered whether the failure to arrive at a correct decision in a previous case should necessarily bind the NIFRS to another incorrect decision. He considered the claimant’s previous record and any potential mitigating factors. He stressed that an officer-in-charge at the first attendance at an operational incident had the power under Article 18 to force entry. He placed particular emphasis on what he regarded as the claimant’s continual denial of responsibility, in that he continued to protest his innocence. He concluded therefore that the claimant should be dismissed for gross misconduct.
67. That finding was communicated to the claimant in a letter of 3 July 2013. That letter stated that:-
“Having taken into consideration the impact of the criminal convictions on your employment I am satisfied that it does have an impact on your ability to carry out your role as a retained crew commander.”
However, it does not specifically deal with the possibility of demotion or down-grading which would have removed the immediate possibility, subject to any later promotion or upgrading, of the claimant being able to exercise powers under Article 18 as the commander of any first response. It does not seem that the possibility of a demotion was actively considered. The possibility of demotion being followed by a later promotion or upgrading after 12 months was raised in the course of the industrial tribunal hearing. Given the claimant’s age and therefore his proximity to retirement and given that promotions or upgrading could in any event have been withheld, this seems to have been somewhat overstated and also seems to have been ex post facto rationalisation on the part of the respondent.
68. The letter went onto state:-
“Having considered all the information available to me in relation to this matter I find that such misconduct, which amounts to dishonesty, is gross misconduct.” [tribunal’s emphasis]
69. The tribunal is concerned that at this stage the respondent did not appear to have considered the precise nature of the convictions or to have obtained the Certificates of Conviction. It had not sought advice from its own sources in relation to those convictions and specifically as to whether or not dishonesty was a necessary component of those convictions. It had not taken up the offer of assistance from Ferris & Company. The tribunal notes, in particular, that legal advice was obtained by Dale Ashford following Mr Allen’s recommendation to dismiss. This legal advice was referred to in an e-mail of 2 July 2013. However, legal advice was not apparently taken on the respondent’s assumption of dishonesty If it was, we would have been referred to it. The respondent appears to have simply disregarded the claimant’s repeated assertions that he had not acted dishonestly. The tribunal is also concerned that Mr Allen, in the course of disciplinary procedure, regarded the first charge as a matter of potential gross misconduct leading to summary dismissal. However the disciplinary code refers to ‘very serious disrepute’ and not simply serious disrepute or disrepute. Mr Allen did not address himself to this obvious distinction. Finally, the tribunal is also concerned that the issue of consistency was not properly addressed by Mr Allen. While there clearly cannot be a tariff system and while there clearly cannot be a binding of an employer simply on the basis that it had been lenient in relation to any other case or in relation to cases in the past, consistency is an issue which still needs to be addressed in the concept of overall fairness. Where there had been a criminal conviction for gross bodily harm which did not result in dismissal, it is entirely unclear to this tribunal why the possession of counterfeit goods would necessarily have been regarded as more serious in relation to either suitability of the individual for employment or in relation to potential damage to reputation.
70. Mr Allen sought to argue in cross-examination that one conviction had occurred in a domestic context. This is entirely unconvincing. It has been some time since it was generally accepted that the fact that a criminal conviction had occurred in a domestic context, rather than elsewhere, was in anyway an exculpatory factor.
71. Mr Allen recommended dismissal and the recommendation was passed to Assistant Fire Officer Ashford for approval. No statement had been tendered on behalf of Mr Ashford. The respondent was allowed to call Mr Ashford to give oral evidence-in-chief.
He stated that his role was a hangover from the old disciplinary regulations. Mr Allen had presented his report to him and had explained it. Mr Ashford had asked questions. He had not taken notes. His precise role appears to have been vague and poorly defined. He stated in evidence that he could not have increased the recommended penalty. Since the recommendation was to dismiss, that limitation on Mr Ashford’s role had little real impact.
In any event, Mr Ashford indicated, by e-mail dated 2 July 2013, to Mr Allen that:-
“Taking everything into account and the legal advice that was received from City Hall, I am content that you should proceed as per your recommendation and dismiss CC Smyth from NIFRS.”
72. The claimant lodged an appeal in a letter dated 5 July 2013. He raised several points. Firstly, he alleged he had been treated more harshly and differently to others who had been convicted of criminal activities (the consistency argument). Secondly, he alleged that the minutes of the meeting on 28 June 2013 had not been read to him at the end of the meeting. This had prevented him and his representative from clarifying any matters. He alleged that the Code of Conduct had not been raised as a specific issue of complaint and that copies of the relevant documentation had not been provided to him. He alleged that no evidence had been produced in relation to reputational damage. That was different from the case of his other colleagues who had been subject to criminal sanction. The issue of core values (PQAs) had not been brought to his attention as a specific complaint. The notes from ACG Weir were incomplete and chose only to reflect the negative, and not the positive, comments made by the Judge. Finally, he refuted the allegation that he had failed to inform the NIFRS in a timely manner of the PSNI investigation. He stated that as soon as he became aware that he was going to be charged he informed the NIFRS. He had never been made aware of his responsibility to advise the NIFRS when first contacted.
73. The claimant again stressed that he believed he was innocent and that he had been duped by the owners of the websites from which he had bought items. He stressed again that he had hundreds of items which were genuine and that only a very small number of items were not genuine. He stressed his record as an employee and as a businessman and also a local government employee. He stated that there had been no question of his honesty and integrity and that he would never knowingly commit any criminal act. He stressed that he had stopped buying and selling things on the internet.
74. The claimant was invited, by letter dated 20 August 2013, to an appeal hearing on 10 September 2013. That was to be heard by Mr C Kerr who was, at that stage, the interim Chief Fire Officer, and Mr Kerr was assisted by Mr D Moore who was the Director of Human Resources. The claimant attended, again represented by Mr D Nicholl, his trade union representative. There was a note taker, Mrs Downey.
75. The claimant presented his various points of appeal. He first of all referred to two other personnel from his fire station who had been convicted of criminal charges and who had only got a written warning from the respondent. One individual had been convicted of grievous bodily harm and the other of criminal damage. One has received a two year suspended sentence and the other had received a fine. He wanted to know why he had been treated more harshly. The claimant’s trade union representative rehearsed the grounds of appeal set out in the appeal letter.
76. Mr Kerr asked whether the 17 convictions, which he was considering, were for specimen charges. The claimant confirmed that they were all charges and that they in fact related to only three items. He gave an example of a football shirt which had four charges against it. Each badge on the football shirt and on the packaging was treated as an individual criminal charge.
77. At that point Mr Kerr allowed a brief adjournment so that the claimant and his trade union representative had time to read the minutes of the disciplinary hearing. This had not been provided earlier. Mr Kerr then offered them the opportunity to reconvene at a later date; but they proceeded in any event.
78. The claimant stressed again his good record of over 26 years of service. He argued that the NIFRS knowledge of his 26 years’ service should be worth more than a Probation Officer’s assessment carried out over a few minutes by telephone. Mr Kerr adjourned to consider the matter.
79. On 23 September 2013, Mr Kerr wrote to the claimant notifying him of his decision. In relation to the claimant’s arguments in relation to the Code of Conduct, integrity and the PQA documents, the appeal was not upheld. Mr Kerr considered that the investigation report had made it plain to the claimant that these issues would be raised.
80. In relation to the consistency argument, Mr Kerr simply concluded that AC Allen had considered the point and had considered that there were sufficient grounds to distinguish between an assault case and one involving financial benefit from wrongdoing. He also confirmed that AC Allen had referred to this case as being ‘in essence an issue of dishonesty’. Mr Kerr stated that he was satisfied that AC Allen had addressed this issue. He did not uphold the appeal.
81. There is no evidence on the face of the appeal decision that Mr Kerr ever considered the issue of consistency properly. In evidence he stated that the HR Department had simply confirmed that a proper comparison was not possible. He does not appear to have ever directed his mind to whether or not suitability for employment or reputational damage following a criminal conviction was an issue which, as part of the concept of general fairness, should be considered. Such a comparison was simply ruled out.
82. In relation to the failure to provide notes of the disciplinary hearing, Mr Kerr recorded that they were afforded to the claimant and Mr Nicholl at the appeal hearing and that neither wanted a postponement. That part of the appeal was not upheld.
83. In relation to the reputational damage issue, Mr Kerr accepted that this had not been established and that part of the appeal was allowed. In relation to Mr Weir’s notes, the appeal was not allowed. In relation to the issue of not warning NIFRS in a timely manner, the appeal was upheld.
84. In conclusion, he determined that this was, as considered by Mr Allen, in essence a case of dishonesty which impacted on the claimant’s role as a member of the NIFRS. He concluded that on the basis of his dishonesty the claimant was no longer suitable for employment. He referred to the Probation Officer’s report. He therefore confirmed dismissal on that basis.
85. After the appeal, part only of the original two charges remained. The penalty of dismissal remained unaltered.
Decision
86. The tribunal concludes that the decision to dismiss the claimant was taken on the basis of the claimant’s conduct - a potentially fair reason for the purposes of the 1996 Order. No other reason has been suggested by either party or by the evidence and it is clear that conduct was the reason for the dismissal. There was no dispute about compliance with the statutory dismissal procedure as required by the Employment (Northern Ireland) Order 2003.
87. The decision on the internal appeal upheld parts of the decision which had earlier been reached by Mr Allen at the disciplinary stage. At the appeal stage, Mr Kerr agreed with Mr Allen that the 17 convictions for possession contrary to Section 92 were in essence offences of dishonesty and he agreed with Mr Allen that those convictions for dishonesty meant that the claimant was unsuitable for further employment as a crew commander. Both Mr Kerr and Mr Allen referred particularly to the powers of entry under Article 18.
88. The tribunal determines that this was an unfair dismissal for the purposes of the 1996 Order.
89. Firstly, the offences under Section 92 were, to all intents and purposes, absolute offences or to use another term, offences of strict liability. It did not really matter to the criminal court whether the claimant had or had not been dishonest. It was sufficient to sustain the convictions that he had had no reasonable grounds for his stated belief that the goods were genuine. Naivety or carelessness on the claimant’s part in this regard would have been sufficient. The claimant’s argument that he had been ‘duped’ was not inconsistent with the 17 convictions. Dishonesty was not a necessary ingredient of these convictions. The respondent nevertheless had simply assumed dishonesty on the basis of the reports of the convictions and on the basis of the reports of the District Judge’s remarks. These remarks did not, as reported, refer to dishonesty.
The respondent had been faced with a claimant who had accepted the 17 convictions for possession. He was not appealing those convictions. However he protested throughout the investigatory, disciplinary and appeal process that he had been ‘duped’ by the website which had sold the goods to him in the first place.
90. Counsel for the respondent urged the tribunal to ‘take a reality check’. He argued that it would be unfair for a tribunal to expect an employer to know the difference between an absolute offence and an offence requiring an element of dishonesty. He stated that since the lawyers on the first day of the hearing had not considered whether the offences under Section 92 were absolute offences until the tribunal itself raised the issue, it would be a counsel of perfection to expect an employer to have appreciated the difference and to have investigated this point. He argued therefore that the assumption of dishonesty on the part of the respondent was a reasonable assumption for a reasonable employer to have made.
91. The tribunal does not accept that this is the case in the circumstances of the present claim. The tribunal notes that it is enjoined by the statutory test to have regard to the size and the administrative resources of the particular employer in assessing the reasonableness of a decision to dismiss. There is no ‘one size fits all’ rule to be applied to every employer in every circumstance. What can reasonably be expected of a sole trader without ready access to support or advice may be different from that which can reasonably be expected of a large organisation which has its own Human Resources Department and which has ready access to legal advice. The respondent falls squarely into the latter category. It has significant administrative resources in the form of its own HR Department with experienced personnel and it has ready access to legal advice. It also was in a position where it was considering the dismissal of a long-standing employee with a 26 year record of employment and with no relevant disciplinary issues. That person constantly asserted that he had not been dishonest; he had been duped. The respondent did not explore this issue further. It did not seek Certificates of Conviction which would have set out precisely the particulars of the convictions with a specific statutory reference. The respondent did not revert to Ferris & Company, the claimant’s solicitor in the criminal proceedings, who had offered assistance if any further clarification were required. The respondent did not raise the issue with the Human Resources Department and did not seek legal advice on this particular issue, although it is clear that legal advice of some sort was obtained from City Hall before the recommendation to dismiss was accepted by Mr Ashford. It cannot reasonably be argued that City Hall’s Legal Department had been unaware of absolute offences. The respondent (both Mr Allen and Mr Kerr) simply assumed dishonesty on the part of the claimant.
The tribunal has concluded that this was not an assumption that a reasonable employer, in the circumstances of the present case, with the respondent’s administrative and legal resources, with the offer of assistance from Ferris & Company, with the clear statements from the claimant, could reasonably have reached.
92. Secondly, the tribunal also notes that the respondent (both Mr Allen and Mr Kerr) relied on the claimant’s lack of repentance and lack of insight into the issues raised by these convictions. The respondent had therefore been concerned about the possibility of repetition.
In relation to the possibility of repetition, the claimant had made it plain to the investigating officer, Mr Crawford, that he had stopped buying and selling such goods in 2010 after being first spoken to by the PSNI. The claimant also made it plain to Mr Allen that he was at the stage of the disciplinary proceedings no longer buying and selling these goods. There was no other evidence of the possibility of repetition other than a report from Mr Weir which referred to a Probation Officer’s report of a ‘medium risk of re-offending’. The issue of potential repetition, or re-offending, was not gone into any further by the respondent in its conversations with the claimant. In the circumstances of this case, no reasonable employer, acting reasonably, could really have been concerned about ‘lack of insight’ or about a risk of repetition.
In relation to the alleged lack of insight, the repeated position of the claimant that he had been ‘duped’ was not inconsistent with these convictions. It did not demonstrate a lack of insight.
93. Thirdly, the respondent did not reach any rational position on consistency. The respondent at least on appeal was aware of the two cases of criminal convictions in the claimant’s fire station. One fire-fighter had been convicted of assault occasioning grievous bodily harm and one of criminal damage. One had received a suspended prison sentence and one was fined. Mr Allen and, in turn, Mr Kerr, the decision-makers on behalf of the respondent, simply asked their HR Department for information in relation to this issue and were told that these matters were not comparable. They did not enquire further and did not consider the matter further. Mr Kerr pointed out to the tribunal that the criminal damage case occurred in a domestic context. That position was not explained further. However, it is some time since any criminal conviction was regarded less seriously by the criminal courts, civil courts or indeed by anyone simply because it had occurred in a domestic context. Mr Kerr also stated that while he did not wish to suggest that assault was condoned by the respondent, the respondent had been concerned that it should not be seen to be condoning the possession of counterfeit goods. It is not entirely clear to this tribunal why that particular type of offence raised particular concerns with the respondent while criminal damage or assault occasioning grievous bodily harm did not do so, or did not do so to the same extent.
94. Fourthly, the respondent, at no stage, carried out ‘a careful and conscientious investigation of the facts’ as advocated in Roldan. In particular, it failed to properly consider the defence put forward by the claimant in relation to ‘dishonesty’ and the evidence in relation to the possibility of repetition.
95. Fifthly, the respondent failed to properly consider the relevance of the 17 convictions to the claimant’s job. The offences were not for burglary, mugging or theft. They did not involve, unlike other cases, physical injury or criminal damage. There was no real link between those convictions and the claimant’s job as in, for example, the C&A Modes case.
96. Taking all these factors into account, the tribunal concludes that the decision was unfair for the purposes of the 1996 Order. It was not a decision that a reasonable employer, in all the circumstances of the case, could reasonably have taken.
Remedy
Contributory conduct
97. Compensation may be reduced by an appropriate percentage where there is culpable or blameworthy conduct which caused or which contributed to the dismissal and where it would be just and equitable to reduce the award.
98. The tribunal concludes that the 17 convictions under Section 92 were culpable or blameworthy conduct and that they contributed to the dismissal.
99. This is a case where the tribunal concludes that a reasonable employer, for the reasons set out above, would have imposed a lesser penalty such as the warnings issued on the cases put forward by the claimant as comparators or at the very most demotion.
100. The tribunal therefore concludes, following the guidance in Hollier v Plysu Ltd [1983] IRLR 260, that the claimant bore some blame for the dismissal but that a contributory reduction of 25% in appropriate.
Calculation
101. The parties agreed that the basic award was calculated as:-
20 weeks x weekly gross = 20 x £273.18 = £5,463.60
102. The net loss of wages for the purposes of the compensatory award was agreed as a weekly figure of £182.74.
103. The claimant had a full-time post elsewhere and other business interests. There was no evidence of any search for alternative part-time employment to mitigate his loss. There was no evidence of any effort to expand his business interests to similarly mitigate his loss.
104. The tribunal applying its experience of the employment market, concludes that the financial loss could and should have been mitigated by 26 weeks from the date of his dismissal on 25 September 2013.
105. The compensatory award is therefore:-
26 weeks x £182.74 £ 4,751.24
Loss of statutory rights £ 500.00
Agreed loss of pension rights (for six months) £ 139.00
Total £ 5,390.48
106. The total of the basic and compensatory awards is £10,854.08
107. Less 25% contribution reduction to both the basic and compensatory awards the final figure for compensation is £ 8,140.56
108. Recoupment is not appropriate.
109. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Vice President:
Date and place of hearing: 6 - 8 May 2014, Belfast
Date decision recorded in register and issued to parties: