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Cite as: [2015] NIIT 1679_13IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1679/13IT

CLAIMANT: David Robinson

RESPONDENTS: Coleraine Borough Council

Certificate of Correction

Please note the following correction to the decision issued on 07 January 2015:-

(i) The ‘Appearances’ on page 1 should read:

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mr Neil Philips, Barrister-at-Law, instructed by Worthingtons Solicitors.

Employment Judge:

Date:

THE INDUSTRIAL TRIBUNALS

CASE REF: 1679/13

CLAIMANT: David Robinson

RESPONDENT: Coleraine Borough Council

DECISION

The unanimous decision of the industrial tribunal is that the claimant was not unfairly dismissed and his claims of unfair dismissal are therefore dismissed.

Constitution of Tribunal:

Employment Judge: Employment Judge McCaffrey

Members: Mr I Atcheson

Mr A Burnside

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mr Neil Philips, Barrister-at-Law, instructed by Donnelly and Kinder Solicitors.

1. Issues

1.1 This was a claim of unfair dismissal by the claimant against his former employers, the respondent. The claimant had worked for the respondent as Principal Building Control Officer and was employed by the council for approximately 18 years up to the date of his dismissal in June 2013. The issue for the tribunal to consider was whether the claimant had been unfairly dismissed. The claimant alleged that the penalty of dismissal was disproportionate for the misconduct alleged. He also alleged that he had been treated in a way that was inconsistent with the way that other council employees had been treated. The respondent disputed the claimant’s allegations.

2. Facts

2.1 We received witness statements and heard evidence from the claimant and also from a number of witnesses on behalf of the respondent. These were:

· Kieran Doherty, Chief Executive of the respondent,

· Moira Mann, Head of Development Services, who had carried out an investigation into a complaint received about the claimant in the Autumn of 2012;

· Aidan Mullen, Head of Operations at the respondent who was a member of the disciplinary panel,

· Roger Wilson, former Chief Executive of the respondent, who had chaired the disciplinary panel convened with the claimant in July 2014.

There were also a considerable number of documents opened to us in the course of the hearing in relation to the background to the matter the investigation and all elements of the disciplinary procedure. On the basis of the evidence before us, we make the following findings of relevant facts.

2.2 At the core of this case is a property at 12 Adelaide Avenue, Coleraine (“the property”) which was purchased by the claimant and his wife in January 2012. The history of that property is relevant to the issues we have to address and therefore we set it out briefly as follows. In or about 2008, it came to the attention of the Building Control Department at the respondent that the then owner of 12 Adelaide Avenue had been carrying out works to the property without applying for approval under the Building Regulations (Northern Ireland) 2000 and without seeking planning permission. Over the course of the next year and a half, four letters were sent to the owner of the property, two of them signed by the claimant in his role of Principal Building Control Officer. The letters warned the owner of the property that he was in contravention of the Building Control Regulations, that he should apply for approval as soon as possible and that if he did not, he may be subject to legal action. A letter sent in August 2009 and signed by the claimant indicated that if they did not receive a prompt reply, the matter would be referred to the relevant Council committee to instigate legal proceedings against the property owner. The matter had been discussed at a meeting with the Building Control Department in February 2009, when a list of properties in breach of building control approval was noted. Subsequently, the property was repossessed by a bank and put on the market for sale in 2011. A sale could not be achieved and the property was subsequently sold by public auction in January 2012, at which stage it was purchased by the claimant and his wife.

2.3 The claimant was aware from his position as Principal Building Control Officer with the respondent that work had commenced some years before at the property to build a rear extension and to convert the property into three self contained flats. He was also aware that planning approval and building control approval had not been obtained for the property in advance of the work starting. He subsequently told one of his colleagues Donald Kenny that he had purchased the property. Mr Kenny expressed disbelief that the claimant had bought this property. In his statement to Moira Mann as part of her investigation, he commented, “I could not think of a more awkward project to resolve.” His statement also expresses his concern that, when the property was placed on the market in 2011, he and another building control officer had taken calls from members of the public who were interested in purchasing the property. In the course of those telephone calls Mr Kenny and his colleague had advised callers that the property did not have building control approval and that it would be a difficult project to resolve. In his statement he said, “We may have blighted the property by doing this ... you could argue that potential buyers were put off by what we were saying.”

2.4 After purchasing the property, the claimant indicated that he had also spoken to Kieran Doherty, his Director at the time. At that time the claimant reported to Mr Doherty who in turn reported to the Chief Executive of the respondent Council. The claimant and Mr Doherty had different recollections of this conversation. Mr Doherty agreed that the claimant had spoken to him, advising that he and his wife had bought the property, that there were some problems in relation to damp which needed to be resolved and that the property would need some work. He did not recall that the claimant had told him the property was currently in breach of building control approval and planning permission and that these matters would need to be regularised. The claimant was adamant that he had told Mr Doherty of this, but Mr Doherty did not recall that part of the conversation. We accept a conversation took place and that it touched on work needing to be carried out at the property. The claimant’s contention however was that this conversation amounted to a declaration of his interest in the property and should have been treated as a notification to Mr Doherty of his potential conflict of interest under the Code of Conduct for Local Government.

2.5 The Code of Conduct was opened to us in the course of the hearing, and it is relevant that we quote the appropriate parts of it. The Code of Conduct for Local Government employees is dated February 2004. In it the framework of the Code is set out. It is stipulated at paragraph 2.1 that

“Employees will maintain conduct of the highest standards so that public confidence in their integrity is sustained.”

In the seven principles of public life set out at paragraph 2.2, “honesty” is defined as follows

“Have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.”

In the section headed “Standards of behaviour, impartiality and conflicts of interest”, the following is to be found:-

“Responsibility is placed on every member of staff for disclosing to an appropriate manager or officer of the council every potential conflict of interest in which he/she may be involved. In general employees’ private interests must not be such as to have the potential for allegations and impropriety or partiality to be sustained thereby bringing the Council into disrepute. Employees should not misuse their official position or information required in their official duties to further their private interest or those of others.”

Later in the document under the hearing “Outside Commitments” the following is found:-

“An employee must not subordinate his/her duty to the Council to his/her private interest or put himself/herself in a position where duty and private interest conflict. The Council should not attempt to preclude officers from undertaking additional employment outside their hours of duty with the Council, but any such employment must not, in the view of the Council, conflict with or react detrimentally to the Council’s interest, or in any way weaken public confidence in the conduct of the Council’s business.”

The claimant agreed that he had received training on the Code of Conduct in November 2010. That meeting had been convened by Desi Wreath, who was the claimant’s line manager at the time. The meeting consisted of an update in relation to the reissued Code of Conduct for Local Government employees. The notes of the meeting set out (amongst other things) examples of what might be seen as a conflict of interest. These included the preparation of plans for Building Control “by an employee or their relation”. The notes also indicate that when working for the public, staff had to be “squeaky clean” as people made homemade perceptions; “integrity” and “honesty” principles were highlighted. It was stressed that declarations of any perceived or actual conflict of interest should be made as soon as possible and should be sent to Human Resources. These would then be brought before a panel to consider how they should be dealt with. There was specific reference to Building Control Section and Mr Wreath stressed that if anyone was involved in work or knew of any work in the building control section that this had to be reported to him and it would be “frozen”. He emphasised that rules had been broken in the past, but “a line had now been drawn”. The rules would be strictly adhered to and disciplinary procedures would be invoked against anyone who broke the rules.

2.6 Following the claimant’s purchase of the property, another Building Control Officer named Martin McCook subsequently spoke to Kieran Doherty in relation to the purchase and passed on Donald Kenny’s concerns in relation to the claimant having purchased the property. At that stage Mr Doherty did not take any action. However on 2 August 2012 he received a telephone call and subsequently an email from Councillor McClarty, raising a complaint which had been made to him by a member of the public. The body of the email states:-

“I just had a call from an individual who tells me that building work is going on at the above premises (12 Adelaide Avenue, Coleraine) to convert the dwelling into apartments. Apparently there is no planning permission for this. The individual tells me that the owner of the property is our own David Robinson and that a fire escape has been installed. The gentleman is alleging that he believes there is something untoward about this since a fire escape would have to be inspected by building control and there would, therefore, be a conflict of interest.

Would appreciate your advice.”

2.7 Mr Doherty acknowledged receipt of the email and subsequently forwarded it to Jackie Barr, one of the colleagues within his Department and asked her to do a preliminary investigation. She met the claimant on 8 August and discussed the matter with him. The claimant agreed that he had purchased the property and that when he and his wife bought it, he was aware that the former owners had commenced work to convert the property into three self contained apartments without having necessary planning permission or building control. He was aware that responsibility for these breaches would pass to him and his wife as owners of the property. He went on to explain that on inspection there were problems with damp at the property and he needed to carry out some emergency repairs. However the work had gone beyond this in that he had not simply repaired damage to the ceilings but had carried out soundproofing as well. The work carried out by the claimant had gone beyond remedial works in that a chimney had been replaced, a parapet wall had been raised on the roof terrace to provide privacy to the neighbour and a galvanised rear staircase had been installed at the property.

2.8 It was clear at the conclusion of this meeting that although the claimant had spoken to someone in Planning Service about the matter, he had not made an application for planning permission to regularise the breaches of planning permission at the property nor had he made an application for building control approval. Ms Barr also spoke to the claimant about the Code of Conduct. It is clear from her notes that she advised the claimant that he should make the necessary planning and building control applications as a matter of urgency so as not to create a situation where there would be any conflict of interest. A conflict of interest form was completed by the claimant on 9 August 2012, the day after the meeting.

2.9 Ms Barr made her report to Mr Doherty and he in turn referred the matter to Human Resources. At this point Ms Moira Mann was instructed to undertake an investigation of the matter, which commenced in early September 2012. That investigation took place over a period of some months and was concluded in January 2013. Ms Mann gave evidence to the tribunal and interviewed not only the claimant, but also Mr Doherty, Ms Barr, Donald Kenny and Paul Duffy of the Planning Service. Her final report had some 30 appendices attached to it, including interview notes, details of the property, responses from building control approval and the Planning Department. In particular the appendices include email correspondence from Jackie Barr to Ms Mann on 21 and 25 February 2013 confirming that at that point there had been no applications for building control approval or planning permission received. As far as building control was concerned, the matter had been passed to the Group Building Control Officers at Derry City Council who had written to the claimant’s wife on a number of occasions in relation to the lack of building control approval. There had been a number of letters sent by the Planning Department to Mr Robinson in relation to his failure to lodge a planning application, and enforcement action was being threatened.

2.10 Ms Mann’s findings were, in summary, that the claimant had carried out building work at 12 Adelaide Avenue without planning permission and without building control approval. She also found that there was a potential conflict of interest regarding the property which had not been declared by the claimant at the time. She concluded,

“In my view it was clear from the evidence that best practice was not followed by David Robinson in relation to 12 Adelaide Avenue in that he did not follow the recommendations of his own building control section. Based on the evidence gathered during the investigation, I conclude that by not following the processes in a timely fashion and registering his interests immediately when the property was purchased Mr Robinson became conflicted. He was then open to public perception that the Head of Building Control in Council was acting in a way that contravened building control advice and protocols.”

2.11 The matter was subsequently referred to be dealt with as a disciplinary matter. The claimant was written to on 21 May 2013 indicating that disciplinary action was being considered in relation to four matters as follows:

· Serious breach of Code of Conduct,

· Bringing the council into disrepute,

· Serious professional misconduct,

· Serious breach of council rules, policies, procedures or practices.

The letter advised him that these matters could individually and cumulatively be deemed to amount to gross misconduct. If founded, accordingly a potential outcome of the disciplinary hearing may be summary dismissal. The claimant was provided with a copy of the investigation report and appendices and advised of his right to be accompanied.

2.12 The meeting was subsequently rearranged to facilitate the claimant and the disciplinary meeting subsequently took place on 11 June 2013. The notes of that meeting are lengthy and detailed. It is clear that the claimant accepted at least in part the allegations made against him. His union representative Mr Law (who accompanied him) confirmed that the claimant accepted that he had breached the disciplinary policy and indicated that the main issue was whether it was misconduct or gross misconduct. In the course of the meeting the claimant indicated that he had lodged a planning application in relation to the property a week before the disciplinary meeting. When he had been asked why he had waited so long, the claimant indicated it was because of his wife’s ill health. He indicated that his wife had been ill and that in his words “things ran away from me”. It should be noted that the claimant advised us that his wife had been diagnosed with a brain tumour in 2003, with a terminal prognosis. While Mrs Robinson is, happily, still alive the claimant advised she stil suffers from ill health as a consequence of this diagnosis. He also advised that around the time of his wife’s diagnosis, his daughter had also suffered from childhood leukaemia. He had not mentioned any continuing problems with her health. The claimant also advised the tribunal that he was himself currently on a high dosage of medication for depression.

2.13 However the claimant agreed that work had been carried out to the property by him and his wife in the first half of 2012 which was beyond the remedial work which would have been permitted without building control approval. The claimant had referred to the possibility of applying for regularisation. When he was asked in the course of the disciplinary meeting if he thought that submitting an application for regularisation to Building Control later would be “okay”, the claimant replied, “No”. When asked if he felt he had compromised himself, the claimant replied “Yes, I am ashamed and embarrassed and I apologise but we are where we are.” The claimant was also asked in the disciplinary meeting whether he believed his actions affected the reputation of the Department, to which he replied “Yes”. At that meeting, the claimant raised the question of his wife’s ill health more than once. The panel (Mr Baker and Mr Mullan) clarified that this related to Mrs Robinson’s ill health commencing in 2003, not a recent event. In his evidence to the tribunal, Mr Mullan confirmed that the panel had taken the claimant’s family circumstances into account, including the fact that the onset of the illnesses had occurred some ten years before.

2.14 Following the conclusion of the disciplinary meeting, an outcome letter was sent to the claimant on 18 June 2013. The issue of that letter was delayed because the claimant had reported ill in the meantime. The findings of the disciplinary panel were that the complaints against the claimant were upheld. They noted that as the Principal Buildings Control Officer, it was not unreasonable to expect the claimant to have an understanding of the functions of the planning service and the legislative requirements required of a home owner or business. They noted that he had failed to apply for planning permission for the property and failed to respond to correspondence sent by the Planning Service which resulted in him facing enforcement action. He had also contravened the Building Regulations by failing to deposit plans before commencing works and in so doing had failed to give the required notice specified at stages of work. Despite full knowledge of the mandatory requirements, he had carried out work at the property in contravention of the Building Regulations. In relation to the allegation of breach of the Code of Conduct, it was the finding of the panel that his professional reputation within Council, within his own Department and in the wider building control environment was damaged to such a degree that his position was untenable. The panel also referred to a number of matters raised during the disciplinary hearing which they indicated had damaged trust and confidence between the claimant and the respondent. In particular, the disciplinary panel did not accept the claimant’s assertion that he had no prior knowledge of the property before seeing a “For Sale” sign at it in early 2012. The panel were convinced that, given the history of the property set out above, the claimant was well aware of the history of the premises. The panel were also concerned at the claimant’s failure to engage with Building and Control of the Planning Service, and set out their belief that the claimant had made a number of false statements (set out in the letter) in the course of the disciplinary hearing. The panel concluded that the claimant’s behaviour from January 2012 to date was perceived to be “unprofessional, uncooperative and deceitful” and there had been a complete breakdown of trust and confidence between the claimant and his colleagues on the council. The panel therefore found that the allegations of misconduct against the claimant were proven and that they constituted gross misconduct. Accordingly the outcome was that the claimant was to be dismissed with effect from 18 June 2013.

2.15 The claimant appealed this decision through an email sent by his union representative to the Human Resources Department of the respondent. The claimant had been unable to attend the initial appeal meeting and this was subsequently arranged for 25 July 2013. The appeal meeting was chaired by Roger Wilson and three of the respondent’s councillors were the other members of the appeal panel. A representative from Human Resources attended, as did a note taker, the claimant and his union representative. At the hearing it was confirmed that the grounds of appeal were the sanction imposed, the conclusion reached and an alleged breach of confidentiality. The appeal was not a total rehearing of the matter, but the claimant was allowed to call witnesses, and decided to call both Ms Mann and Mr Damien McMurray of the Group Building Control Department at Derry City Council. The thrust of the claimant’s appeal was that there was a “two stream” system in place, in that he could apply for regularisation of work after the event and that a different standard was being applied to him than would be applied to a member of the general public.

2.16 Following the appeal hearing a detailed outcome letter was sent to the claimant on 2 August 2013. This dealt with the various allegations against the claimant in turn. The first was whether the claimant had carried out building work at 12 Adelaide Avenue without permission. The finding of the appeal panel was that, as the Principal Building Control Officer for the respondent, the claimant had reasonable knowledge of the rules and regulations pertaining to planning. The letter goes on:

“The panel believe your position within the organisation placed a responsibility on you to act with the utmost integrity and in the public and Council’s best interest. Having considered all the evidence, the panel are in no doubt that until these matters were raised with you, you would have continued with works onsite that would have been in contravention with current planning permission. The panel accepted the legislation for regularisation of developments exists. However we believe that given your role you should have been proactive in seeking approvals and permissions, rather than seeking retrospective approval – the analogy could be drawn that you were seeking forgiveness rather than permission to do the work”.

The second allegation related to the alleged failure of the claimant to obtain building control approval for the property and whether he had followed the correct council procedures and protocols. The appeal panel’s conclusion was:

“The panel accept that the building notice procedure exists, however again we believe that as someone who held the most Senior Building Control Officer post that you should be setting example how proper process should be conducted. It is the panel’s view that this was not the case and that you would have continued working onsite without the necessary approvals how disciplinary investigation not be instigated. Again the panel’s expectations of you as Principal Building Control Officer would have been for you to set and comply with the highest professional standards.”

2.17 The third allegation related to the potential conflict of interest regarding the situation and, if it existed, whether the claimant had declared a potential conflict of interest after purchasing the property. The panel noted that the claimant had submitted a code of conduct declaration of interest on 9 August 2012, the day following his interview with Jackie Barr and at least six months after the purchase of the property. They noted that:

“For an officer at your level in the organisation it is entirely reasonable and expected that you would have made a declaration of interest at the earliest opportunity in line with the Code of Conduct. Instead you chose to make the declaration only when you were challenged. ... You were aware of the organisation’s attempt to change the culture of the organisation and this why new training and protocols for implementing the code of conduct were put in place. As Principal Building Control Officer, you not only had a role in complying with the procedures but also ensuring their effective implementation within the area of work for which you were responsible”.

2.18 At the appeal meeting, the claimant’s union representative also suggested that he felt that mitigating factors had not been taken into account at the disciplinary hearing, in particular the pressure the claimant was under as a consequence of his wife’s and daughter’s illnesses and the fact that no work was currently being undertaken at the premises. At the claimant’s request the appeal panel had looked at his sickness file but there was only one reference during the period January 2012 – June 2013 referring to his family circumstances putting him under pressure. This was in February 2013 and Dr Hamilton (the Occupational Health Doctor) had noted that it was not the primary stressor. The panel also noted that the cessation of work on site had only occurred once the matter came under investigation. The panel found that the claimant had failed to reach the standard expected of a senior officer of the respondent. They indicated that they had taken into account the evidence and material presented to them including the mitigating factors. Their conclusion was that they upheld the decision of the disciplinary panel.

2.19 The claimant lodged his claim in the industrial tribunals on 17 September 2013. In his claim form the claimant referred to the health difficulties suffered by his wife and his daughter and also the fact that he himself suffered from depression. He alleged that no mitigating circumstances had been taken into account in relation to the ongoing stresses he was suffering. He alleged that some of the information given against him was factually incorrect and in his witness statement, he also alleged inconsistency of treatment in that he alleged that two other employees of the Building Control Department had been treated differently to him. There was a further allegation by the claimant that other senior officers had brought the respondent into significant disrepute and had not been disciplined. He referred in his witness statement to a case where the respondent (through the Chief Executive) had admitted serious health and safety breaches which had resulted in the death of an employee. The claimant’s witness statement says, “This case has been well documented by the public domain. No officer within council has ever been held to account”. However the claimant failed to give any direct evidence in relation to this or to specify how any individual officer of the respondent was responsible or had committed any disciplinary offences. We cannot therefore take this matter into account as we have no clear evidence before us in relation to the matter.

2.20 The claimant went on to say that officers within building control had breached current planning law as well as carrying out and submitting plans within the respondent’s building control section without any disciplinary action. Mr Doherty dealt with this matter in his witness statement. The first matter related to a planning consultant named Mr Brace who was an agency worker with the respondent. Mr Brace had been preparing a building control application for a client for whom he had previously done some work. The evidence given by Mr Doherty (which was not contested) was that as soon as this matter arose Mr Brace spoke to Jackie Barr as Head of Service for advice and to make a declaration of interest. After consulting Mr Doherty it was agreed that Mr Brace would complete the declaration of interest form and that it was acceptable for him, as a self-employed individual on placement with the council through an agency, to submit work to the respondent’s Building Control Office provided that the application fee, validation and approval of all the plans and site inspections were dealt with by another member of the Building Control Team. The other situation related to Donald Kenny, who had built a domestic garage at his own house in 2013. Mr Kenny believed that the garage would fall within the rules for “permitted development” enforced by DOE Planning Service. It subsequently transpired that the garage required a planning application not because of the size or footprint of the building but due to the design detail around the roof. Once this was discovered Mr Kenny made an application for planning approval as requested by Planning Service and an approval was subsequently issued. Documentation in relation to this matter was also produced to us and was not challenged by the claimant.

3. The Relevant Law

Unfair Dismissal

3.1 The relevant law in relation to unfair dismissal is to be found at Article 130 of the Employment Rights (Northern Ireland) Order 1996 which reads as follows:-

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

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

(b) that it is either a reason following 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 -

(a) relates to the capability or qualifications of the employee for performing work of a kind which he was employed by the employers to do;

(b) relates to the conduct of the employee;

(d) is that the employee could not continue to work in a position in which he held without contravention (either on his part or that of his employer) of a duty or restriction imposed by or under a statutory provision…”

3.2 In this case, the respondent conceded that the employee had been dismissed and it is therefore for the employer to show that the reason for the dismissal was a fair one, i.e. that it related to the conduct of the employee. It is then for the tribunal to consider whether the employer acted reasonably in treating the conduct alleged as sufficient reason for dismissal.

3.3 The relevant case law is summarised in the judgment of the Northern Ireland Court of Appeal in Dobbin v Citybus Ltd [2008] NICA 42 and quoted with approval by the same Court in Rogan v South Eastern Health and Social Care Trust [2009] NICA 47. The Court was referred to established case law in the cases of British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR which was further refined in the judgments of Lord Justice Mummery in Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden [2000] ICR 1283. The guidance set out in Iceland Frozen Foods is as follows:-

“(1) The starting point should always be the words of [Article 130] 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.”

3.4 While it is accepted that the civil standard was the appropriate standard of proof for a disciplinary panel, reference has also been made in more recent cases (including in cases before the House of Lords) of the need for more cogent evidence to overcome the unlikelihood of what is alleged if a serious allegation is made. In Rogan, the Court referred to the judgment of Lord Carswell in Re D [2008] UKHL 33 where he cited the judgment of Lord Justice Richards in R(N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA CIV 1605 where he said:-

“Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities”.

Inconsistency of Treatment

3.5 The claimant in this matter alleged that he had been treated in a manner inconsistent with treatment given to other colleagues in the Building Control Department who, he claimed, had not even been disciplined for alleged breaches of the Code of Conduct in one case and of the planning rules in another. Mr Philips referred us to the decision of the Court of Appeal of England and Wales in Paul v East Surrey District Health Authority [1999] IRLR 305. In particular he referred us to the ruling of the Court that:-

“Where arguments based on disparity are raised, Industrial Tribunals should heed the warning of Waterhouse J in Hadjioannou v Coral Casinos [1981] IRLR 352 and scrutinise them with care. Ultimately the question for the employer is whether, in the particular case, dismissal is a reasonable response to the misconduct proved. If the employer has an established policy applied for similar misconduct, it would not be fair to change the policy without warning. If the employer has no established policy but has on other occasions dealt differently with misconduct properly regarded as similar, fairness demands that he should consider whether in all the circumstances, including the degree of misconduct approved, more serious disciplinary action was justified.”

We are also aware of the comments of the Court of Appeal some years earlier in Post Office v Fennell [1981] IRLR 221 where it was noted that employees who behave in much the same way are entitled to be treated in much the same way. We have also referred to Harvey on Industrial Relations and Employment Law Division D1 at paragraph 1040 and following which indicates four “notes of caution” which should be considered in every case. First of all, in considering previous similar situations, an employer should compare like with like. In other words, the situations must be truly similar and not just broadly comparable (see Proctor v British Gypsum Ltd [1992] IRLR 7). Secondly, if an employer is unaware of the conduct of other employees, no inconsistency can have occurred. (Willcox v Humphreys and Glasgow Ltd [1975] IRLR 211). Thirdly, if an employer consciously distinguishes between two cases of misconduct then dismissal can only be successfully challenged if there is no rational basis for distinction made. Finally, even if there is clear inconsistency of treatment, this is only a factor which may have to give way to flexibility of treatment. Undue leniency in the past does not mean an employer cannot dismiss fairly in the future, not withstanding inconsistent treatment.

4. Reasons and Decision

4.1 This is a most unfortunate saga, where the misconduct of a long standing and senior employee of the respondent resulted in his dismissal for gross misconduct. We take into account first and foremost that the claimant admitted right from the preliminary investigation that he had carried out work at the property at 12 Adelaide Avenue without the benefit of building control approval and that he was already aware that the property, when he and his wife bought it, was in breach of Building Control Regulations and Planning Regulations.

4.2 It was noted in the course of the hearing, and the tribunal is aware from its own knowledge of the conveyancing procedure, that breach of Building Control regulations and Planning Regulations can ultimately lead to enforcement action and to prosecution of the owner of the property concerned. In the case of Building Control Approval, this falls within the ambit of local councils; planning permission is currently the responsibility of DOE Planning Service, but may be transferred to local councils in the next few years.

4.3 The claimant was a longstanding and experienced Principal Building Control Officer. He was familiar with the rules and regulations in relation to building control, and the advice given by his Department and by colleagues under his supervision to any member of the public would have been that they should obtain building control approval prior to commencement of works at a property. Failure to do so could mean that the work had to be opened up again to permit inspection. At worst, the Building Control Officers might refuse approval or regularisation if they were not satisfied that the work had been carried out appropriately. Failure to obtain Building Control approval could lead to enforcement action and ultimately prosecution. Equally, the claimant would have been aware from his involvement with the construction industry in general that a breach of planning permission was the responsibility of the owner of the property at any given time, and that responsibility for any breach would pass to a new owner of the property.

4.4 The main points put forward by the claimant at the appeal and subsequently at the Industrial Tribunal hearing appeared to be as follows. He argued first of all that the procedure for building control approval did not always necessitate statutory inspections and that therefore while notice should be given in advance of the work, inspections were not required as the work proceeded. Secondly, he pointed out that under the Building Control Regulations there was provision for regularisation of work after the event and that therefore there was a legal procedure which he could follow. The same applied to planning permission. The claimant said that he had never intended not to apply for the relevant permissions. His case seemed to vary from initially saying that he had not been quite sure what his plans were in relation to the property, and that this had delayed his application, to then focusing on a recurrence of his wife’s illness in the early part of 2012. He felt that her ill health took priority over lodging the applications for the necessary statutory approvals for the property. He conceded however in cross examination that he had arranged to have work done at the property in the early part of 2012 and that while some of it was remedial work, repairs to the ceilings had involved sound proofing which was beyond simply repairing them. This additional work wqould have required building control approval. He agreed also that he had built a parapet wall and installed a galvanised staircase which required building control approval as well. When it was put to the claimant that he had time to arrange all of this work but had not had time to complete the statutory approvals or complete a declaration of interest form in relation to these matters, his reply was simply that it had “got away from him”. His approach before the tribunal seemed to be that, “We all make mistakes”. In his view, breach of the building control regulations and planning regulations was not really a big issue as it could be regularised later.

4.5 In relation to the breach of the Code of Conduct, the claimant asked Mr Wilson in cross examination which took precedence, the law of the land or Council policies. He was referring to regulations which allow for regularisation of breaches of building control or planning law. This seems to us to address the crux of the problem in relation to this case. Mr Wilson’s reply was that when he took up his position as Chief Executive in 2008, the respondent organisation was not one which respected the Code of Conduct in many parts of the organisation. He noted that this was against a background of the controversy over MP’s expenses and concern regarding standards in the public sector. He indicated that he put in place a range of measures and training for every member of staff within the respondent organisation in relation to the Code of Conduct. He acknowledged that it was within the law for the claimant to get retrospective approval from Building Control and the Planning Service. From his point of view, however, the question was whether public confidence would be weakened or strengthened by the claimant’s actions as the most senior Building Control Officer in the organisation. He indicated that his expectation was that Council officers would follow best practice. The view of the appeal panel (as set out in Mr Wilson’s evidence to the tribunal and as set out in the appeal outcome letter) was that had these matters not been raised with the claimant by Council officers, they did not know at what point in time he would have complied with the Code of Conduct and taken the appropriate action to seek permission.

4.6 The claimant agreed that he had undergone training in relation to the Code of Conduct, at which it was specifically noted that any applications being pursued by individuals on their own behalf or on behalf of a member of their family for building control approval should be “frozen” until the appropriate declaration of interest had been completed and a decision taken about how the matter would be progressed. It had been clarified to us in the course of the hearing that where a building control application was being made on behalf of a member of council staff (and especially a member of the Building Control Department), that application would be dealt with either by another member of the Department or be referred to the Group Building Control Office at Derry City Council, to avoid any accusations of impropriety or conflict of interest. The claimant admitted at the disciplinary hearing that he was embarrassed and that he was in a difficult position. However, the gravity of the situation however appears to have escaped him. It was put to him, both at the preliminary investigation carried out by Jackie Barr and at the disciplinary hearing, that as the Principal Building Control Officer of the respondent that he should avoid any perception of inappropriate behaviour. The training on the Code of Conduct had emphasised that council officers had to be “squeaky clean” in their conduct. It was also put to him that as the Principal Building Control Officer, he had to set an example by his behaviour and must make sure that his actions reflected best practice. He must in effect act “by the book” since he had the task of enforcing the book on building control in relation to the general public. To use the vernacular, the claimant simply did not get it. He argued on a number of occasions that the penalty imposed on him was disproportionate to the offence.

4.7 The claimant also alleged inconsistency of treatment in relation to the actions of other council officials in relation to breaches of health and safety. He referred to this matter being in the public domain, but there was no evidence of it before us and so it is impossible for us to take this matter into account. The fact that it may be in the public domain is not evidence unless it is put before us. Secondly, he referred to the behaviour of Mr Brace and Mr Kenny who, he said, not been disciplined by the respondent for similar breaches of the Code of Conduct and planning legislation. It appears to us that these situations are completely different. First of all Mr Brace was not an employee of the respondent, he was an agency worker. Secondly, as soon as he was aware of the possible conflict of interest, he went and sought advice in relation to how the matter might be dealt with. Mr Brace completed the conflict of interest form promptly and the building control application was dealt with exclusively by another colleague in the Building Control Department. The main difference between this situation and the claimant’s situation was that Mr Brace made an immediate declaration of a possible conflict of interest and sought advice about how he might best deal with it so as not to conflict with his duties while working for the respondent. By contrast the claimant did not take any action to complete the conflict of interest form until after he was interviewed by Ms Barr in August 2012 and he only completed the building control notice for the property the same day as he completed the conflict of interest form. The planning application for the property was only submitted a short time before his disciplinary meeting, some 18 months after he and his wife had bought it. He was also in a much more senior position than Mr Brace. In the light of that, it seems to us there is no comparison between the two situations.

4.8 In relation to Mr Kenny, the garage at his house was believed to be within the rules governing “permitted development” under the Planning Regulations and indeed the size and footprint of the proposed garage did fall within those limits. The only matter which required planning permission was the design on the roof. Once Mr Kenny was made aware of this, he promptly submitted a planning application in order to address the matter. By contrast the claimant had spoken to a Planning Officer in relation to the property in around June 2012. He was advised at that stage that enforcement action in relation to the property would be reactivated. The Planning Service sent three letters about the property to the claimant and his wife in the autumn of 2012 to which they failed to reply. The Planning Service had indicated that it would pursue enforcement action against the claimant and his wife as the owners of the property for breach of planning permission. Again Mr Kenny’s situation and the claimant’s in our view are not comparable. Mr Kenny was acting within planning regulations to the best of his knowledge and when he was made aware of a breach, he took prompt action to regularise that. The claimant on the other hand was aware that the property at Adelaide Avenue was in breach of planning permission when he had bought it, did nothing to regularise that, carried out work at the property without seeking confirmation that he was permitted to do so under the existing planning permission, and then ignored a number of letters from the Planning Service. Again, he was the Principal Building Control Officer and in effect was Mr Kenny’s boss. We cannot see that there is any comparison between Mr Kenny’s situation and the claimant’s.

4.9 In relation to mitigation, the claimant alleged that his family situation had not been taken into account in mitigation. The evidence which was given to us was that the claimant’s wife had been diagnosed with a malignant brain tumour in 2003 and that the prognosis was that this was a terminal illness. While happily Mrs Robinson is still alive, the claimant’s evidence to the tribunal was that she can have relapses, she needs care and attention and this necessitates him taking a greater part in caring for their family. He referred to them as a young family but he did not specify their ages. We were aware from his comments that his eldest daughter had childhood leukaemia around the time of his wife being diagnosed with a brain tumour in 2003 and we assume therefore that she at least is now a teenager. We are satisfied from our reading of the notes of the disciplinary hearing, disciplinary outcome letter, appeal hearing and appeal outcome letter that consideration was given to mitigation of the penalty in light of the claimant’s family difficulties. We note however that the disciplinary panel indicated that Mrs Robinson’s health situation had been ongoing since 2003 during which time the claimant had continued at work. There was no suggestion in the claimant’s work medical records that there was anything in particular in 2012 which made the situation different. No specific

medical evidence from the claimant had been produced to the disciplinary hearing or the appeal and so it could not be taken into account. At the hearing the claimant indicated that his wife had been ill in the early part of 2012 and this is why he had been unable to seek the necessary permissions. It did not however explain how he was able to arrange for considerable work to be carried out at the property, yet not have sufficient time to fill out a conflict of interest form or complete applications for building control approval and planning permission, even if had to be amended at a later stage. We found the claimant’s evidence in relation to this matter to be unconvincing.

4.10 We accept the evidence given by the Council representatives, in particular Mr Wilson, that he was seeking to promote a change of culture within the respondent organisation. We can appreciate that for a long-standing employee such as the claimant, this may have caused some difficulties in adjusting to the changes. However the claimant was a senior official of the respondent. It was his duty not only to make sure that he himself complied with the rules, but that the staff under his supervision and control also complied. It was therefore essential that he give a lead, and that his behaviour was above approach. Unfortunately the claimant’s rather casual attitude to complying with the rules proved his undoing. He made the comment at various times during the disciplinary procedure and before us that he was naive in the way that he behaved. Whether it was naivety or arrogance is not for us to say. We are satisfied however on the basis of the information before us that the respondent carried out a proper and thorough investigation into these matters. We are also satisfied that the claimant admitted the misconduct involved right the way through the process. We are therefore satisfied that the respondent’s investigation and the claimant’s admission of responsibility together gave a reasonable basis for the disciplinary panel to believe that the claimant had committed acts of gross misconduct. Dismissal is generally the penalty for gross misconduct and would fall within the band of reasonable responses. As we stated above, what the claimant failed to recognise was the gravity of his actions and the likely consequences for him. This is particularly shown by his actions in failing to lodge the conflict of interest form or the building control application until after he was challenged about it. The situation was exacerbated by his failure to lodge a planning application until shortly before the disciplinary hearing.

4.11 We appreciate from the information before us and also from the claimant’s demeanour and behaviour during the hearing that the claimant is not a well man. We can also appreciate that his family situation is demanding and at times, stressful. That said, we are satisfied that both the disciplinary panel and the appeal panel took account of the claimant’s family situation as far as possible in mitigation in this matter. For the reasons they gave, and given the seriousness of the misconduct, they did not consider that the penalty for gross misconduct should be reduced.

4.12 As stated in Iceland Frozen Foods (para 3.3 above), in many 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. This is such a case and we cannot say that the employer’s decision was unreasonable. Accordingly we find that the dismissal of the claimant was fair, and his claim is dismissed.

Employment Judge:

Date and place of hearing: 24, 25, 26 November and 4 December 2014, Belfast.

Date decision recorded in register and issued to parties: