Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 487/14

 

 

 

CLAIMANT: Colin James McGucken

 

 

RESPONDENT: The Pallet Centre Ltd

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and accordingly his claim is dismissed.

 

 

Constitution of Tribunal:

Employment Judge: Employment Judge Sheehan

Members: Mr J McKeown

Mrs C Stewart

 

Appearances:

The claimant was represented by Mrs Michelle Blair.

The respondent was represented by Mr Denis McGettigan, Barrister-at-Law, of Peninsula Business Services Ltd.

 

ISSUES

 

1. This was a claim of unfair dismissal brought by the claimant against the respondent in relation to his dismissal on 9 January 2014. The claimant alleged that he had been unfairly dismissed. His claim, effectively, was first, that the respondent had failed to carry out an adequate investigation before dismissal and secondly that the respondent had acted unreasonably in dismissing the claimant for gross misconduct, namely discrepancies regarding the number of pallet loads delivered by the claimant and off-loaded at the respondent's premises on 11 December 2013. The respondent disputed the claimant's allegations in full.

 

FACTS

 

2. We received witness statements and heard oral evidence from the claimant, and his witnesses Mrs McGucken and Mr Jonathan Brown, as well as from Mr Paul Kirkwood, Mr Jonathan Dunlop, Mr Terry Elton, and Mr Julian Morrow, a Director of the respondent company. A considerable number of documents were also opened to us in the course of the hearing. On the basis of the evidence heard we make the following findings of relevant facts set out in the paragraphs below.

 

3. We should record that we found Mr Morrow, Mr Dunlop, Mr Kirkwood and Mr Brown to be clear and forthright witnesses. They gave their evidence in a direct manner, at times where it may not have been to their or the company's credit insofar as the conduct of the company did not at times match the policy documents issued by the company to their staff. By contrast we noted that the claimant's application to the tribunal was misleading in a number of respects. The prepared witness statement which he presented to the tribunal omitted to address in any respect his work related activity on the morning of 11 December 2013. The description provided of the claimant's movements on 11 December 2013 in the claimant's claim form submitted to the Office of the Tribunals (OITFET) on 28 March 2014, namely "On the 11/12/13 I parked my lorry in its usual place, gathered my receipts for collected pallets, left my lorry ready for unload and received an unload slip from S Foster, entered our main offices and proceeded to do my usual routine in leaving all paperwork in and doing any other paperwork required, I returned to my lorry after approximately 15 mins and continued about my daily duties with other customers, I returned later that afternoon with a further load and followed the same procedure as before." This was at odds with the claimant's evidence and the CCTV recording provided during the hearing.

 

4. The tribunal found the claimant's evidence unconvincing and unsatisfactory in a number of respects. He appeared evasive particularly when the answer provided at hearing was in conflict with documentation the claimant had submitted in advance of the hearing. One such example concerned his medical history; another was his inability to explain his failure to observe certain matters on the CCTV recording which had relevance to the alternative account of his movements on the critical date 11 December 2013 being tendered for the first time, at the hearing. The tribunal having viewed the CCTV noted the actions of the claimant as evidenced on the recording were not consistent with the description of his work related movements as detailed in his claim form or the description of his usual routine upon arrival with a load of pallets as provided at his investigatory meeting with Mr Kirkwood as well as during the appeal hearings. There was an agreed transcript of those appeal hearings provided to the tribunal. The tribunal found it impossible to conclude on the balance of probabilities that the claimant had made an honest error both in the claim form and at the appeal, given the transcript of the appeal hearings records the claimant asserting the CCTV had been watched by him on multiple occasions.

 

5. The claimant started work as a driver with the respondent company on
31 March 2008. Any previous employment was expressly excluded from his period of continuous employment. He had previously been employed as a driver with responsibility for collecting pallets solely provided by a company known as CHEP. The Statement of Main Terms and Conditions provided to the tribunal indicated the claimant had a contract for 37 hour week. This was also the contractual hourly period stated in the response submitted on behalf of the respondent company. However it was clear from the wage slips provided to the tribunal that the claimant was consistently paid for a 40 hour week, at the rate of pay detailed on his claim form as opposed to the lesser figure contained in the response filed with OITFET on behalf of the respondent.

 

6. Throughout the claimant's employment the respondent company carried on business as a manufacturer and distributor of pallets. The company had around 45 employees which included 6 forklift drivers, 3 supervisors, 4 senior managers, 2 middle managers, operatives and 1 full time driver, namely the claimant.

 

7. The claimant generally reported to Mr Paul Kirkwood or Mr Terry Elton who were members of the senior management team within the respondent company. Mr Elton was the respondent's site manager for the location to where the claimant delivered pallets for off- loading by forklift drivers employed by the respondent. Mr Julian Morrow was the respondent's General Manager and the most senior member of the management team who dealt with disciplinary matters. The only member of management above Mr Julian Morrow is Mr Jim Morrow, the Managing Director. The Company policy documents named him as person authorised to take disciplinary action in the case of a member of management, otherwise for all other employees the designated person authorised to take disciplinary action was a Senior Manager.

 

8. It was not in dispute between the parties that over the years of the claimant's employment with the respondent, the claimant had a fair amount of autonomy as to how he discharged his duties concerning the collection and delivery of CHEP pallets. There appeared to be a level of flexibility permitted regarding the claimant's adherence to 8 working hours daily, five days a week.

 

9. The management of the respondent company accepted they were aware of certain tensions between the claimant and forklift drivers which had impacted on the willingness of forklift drivers to off-load from the claimant's lorry. At least one forklift driver had been disciplined in connection with the matter and others were spoken to on more than one occasion by the General Manager Mr Julian Morrow. The respondent company also put in place arrangements with a neighbouring company Montgomery's Transport to facilitate the claimant parking his lorry at Montgomery's location for off-loading rather than the respondent's own yard. Both the claimant and Mr Julian Morrow agreed there had been a good working relationship between them. It was not in dispute that the respondent company had placed a lot of trust in the claimant regarding the discharge of his responsibilities including the detailing of the numbers of pallets delivered per load.

10. On 11 December 2013 the claimant requested from Sam Foster, the supervising forklift driver on that date, off-load dockets for two deliveries of Pallets:- one load of 102 pallets and one load of 140 Code 01 Pallets and 25 Code 03 pallets. The supervising forklift driver signed dockets for the number of pallets requested by the claimant. At some stage, in the afternoon of 11 December 2013, a radio transmission was made by Sam Foster to all the forklift drivers seeking details of the drivers who off-loaded pallets from the claimant's lorry that day. While a number of the forklift drivers responded with details of pallets off-loaded from the second delivery, none claimed to have off-loaded pallets from the earlier delivery on that date.

 

11. Mr Julian Morrow overheard the radio transmission and requested that Mr Kirkwood conduct an investigation regarding the claimant's deliveries off-loaded on that specific date. Mr Kirkwood in conjunction with another manager Mr Jonathan Dunlop, questioned on 11 December 2013 all six forklift drivers on duty that day. The investigation meeting with each forklift driver was brief as evidenced by the note of each meeting. Mr Kirkwood's enquiries established only 3 of the 6 forklift drivers on duty that day admitted off-loading pallets from the claimant's lorry. All the details of pallets off-loaded concerned the second delivery.

 

12. Mr Kirkwood as part of the investigation looked at CCTV in the respondent company's own premises. He observed in the CCTV, taken from the camera at the respondent company's back gate, pallets being off-loaded from the claimant's second run on 11 December 2013. Mr Kirkwood also looked at CCTV in the adjoining premises of Montgomery's yard but not until after he held his last investigatory interview with the claimant. He made clear to the claimant that Montgomery's CCTV would be looked at as part of the investigation. It was after the final investigatory meeting with the claimant that Mr Kirkwood and Mr Elton went to Montgomery's premises and viewed the CCTV available relating to 11 December 2013 and the claimant's lorry. The CCTV evidence was downloaded onto a memory stick provided by Mr Elton to Montgomery's.

 

13. The claimant when interviewed on 12 December and 18 December 2013, as part of the investigation, made allegations that suggested the forklift drivers could be conspiring against him for other reasons. While the relevant off-load dockets and the customer documents for the pallets lifted by the claimant were not available for the tribunal hearing, the tribunal heard evidence that the paperwork concerning the first load delivered related to "stray" pallets, from no particular registered account holder with CHEP. The claimant throughout the investigation provided no details of where the first load was obtained from although he did offer details regarding the possible source of the second load. Mr Kirkwood made an effort to secure possession of the tachograph for the relevant date but when the claimant's lorry was accessed the tachographs located in the lorry, in particular those relating to the December date at issue, were missing. The claimant had no explanation or detail of an alternative location for where the missing tachographs might be located. Mr Kirkwood concluded at the end of his investigation that he could not believe, given the time between the deliveries and the investigation he conducted with the forklift drivers, that the forklift drivers had the opportunity, while still discharging their duties, to conspire or gang up to make the claimant look guilty of claiming delivery of a load which had not in fact been delivered.

 

14. Mr Kirkwood reported to Mr Elton that the evidence gathered during the investigation warranted disciplinary action. Mr Elton was to conduct the disciplinary hearing and the claimant was invited to attend that hearing on 3 January 2014 by letter dated 19 December 2013. The claimant was sent with that letter a copy of the company disciplinary procedure handbook and copies of the minutes of the meetings with him and the forklift drivers. The claimant was advised of the right to be accompanied by fellow employee or a trade union representative (although he was not a member of a union). Notes of that disciplinary meeting were taken by David McVeigh. It was clear to the tribunal that not all the relevant information relating to the charge of gross misconduct was provided to the claimant in particular, the load/unload documents or the CCTV from Montgomery's were not provided to the claimant in advance or during the disciplinary hearing.

 

15. There was conflicting evidence before the tribunal as to what the claimant's mother was advised in a telephone call with Mr Kirkwood regarding the claimant's right to be accompanied at the disciplinary hearing. However it was clear the claimant had signed contractual documentation, a copy of which was sent with the letter inviting him to the disciplinary hearing, which made clear only a trade union official or a work colleague were entitled to attend such a hearing. The tribunal were content the claimant agreed to proceed with the disciplinary hearing unaccompanied. There was an exchange of words between Mr Elton and the claimant in the hearing of Mr Jonathan Brown, as to Mr Brown's inability to attend the hearing with the claimant. Against that background the note made by the respondent's minute taker had to be somewhat inaccurate in describing the claimant as "perfectly happy" to proceed on that date unaccompanied by anyone.

 

16. The respondent company disciplinary procedure included the statement that persons nominated to conduct an investigation will have "appropriate training and experience and be familiar with the procedures involved". However Mr Kirkwood despite 33 years' service as a senior manager with the respondent company had not received any training in investigation or disciplinary procedures. Instead he relied on seeking advice from Peninsula Business Services on a case to case basis. Mr Dunlop during nine years as a middle manager had received no training in investigation or disciplinary procedures other than guidance from senior management and seeking advice from Peninsula as required. Mr Elton during his 12 years with the company had undertaken no relevant training but relied on taking advice from Peninsula and their representative either concurring or disagreeing with his proposed conclusion following the disciplinary hearing. Mr Julian Morrow had received some training from Peninsula Business Services providing Webinars regarding the conduct of disciplinary and appeal hearings.

 

17. The claimant acknowledged during the disciplinary hearing, as evidenced by the notes made and not contested by the claimant, that he had a position of trust within the company. Mr Elton accepted on questioning from the tribunal panel that there were relevant documents such as the load/unload documents which should have been sent to the claimant in advance of his disciplinary hearing. The tribunal were not satisfied that Mr Elton provided to the claimant the load/unload slips during the disciplinary hearing as he claimed. There was no evidence in the note of the disciplinary hearing that this had occurred. Equally if the load/unload documents had been available at the disciplinary hearing there would appear to have been little need for the questions put to the claimant to identify the location from where the pallets had been collected. The claimant accepted that when questioned he provided no details of the location from which the first load of pallets were collected.

 

18. The respondent company accept that they did not show the claimant the CCTV evidence that they were relying on either before or during the disciplinary procedure despite the assertion made in their response to the claim filed with the OITFET. The CCTV evidence was a major element of the evidence the respondent company relied on to reach the conclusion that the claimant was guilty of gross misconduct. Mr Elton acknowledged that he drew conclusions regarding the missing tachographs which he never put to the claimant during the disciplinary procedure. All these deficiencies in the conduct of the disciplinary hearing led the tribunal to conclude Mr Elton approached the disciplinary hearing with a closed mind as he was satisfied having viewed the CCTV from Montgomery's yard that there was nothing to undermine the statements made by the forklift drivers during Mr Kirkwood's investigation.

 

19. The claimant was notified by letter dated 9 January 2014 that he was dismissed without notice for the discrepancy in his pallet load returns on 11 December 2013 which was classified as "amounting to misappropriation of company goods". The claimant submitted a letter of appeal against his dismissal on the grounds that he had not had a fair or impartial hearing and that the penalty of dismissal did not reflect his previous "good" employment record. There were some difficulties with settling the appropriate date for the appeal hearing to enable the claimant to be accompanied by a union representative. The appeal hearing occurred over two dates, 7 February 2014 and 11 March 2014. Both of those hearings were recorded with the knowledge and consent of the claimant. The full transcripts of the recorded appeal hearings were made available to the tribunal although they contain an error regarding the relevant year, stating 2013 in place of 2014.

 

20. On 13 January 2014 the respondent company, through Mr Elton made a report to the Police Service for Northern Ireland (PSNI) of an alleged theft of 137 pallets which they believed involved the claimant. Mr Julian Morrow handed over documents to the attending police officer on the 14 January 2014, those documents having been collected together by Mr Elton. The tribunal did not consider that Mr Morrow's role in providing requested evidentiary documents to the PSNI was an automatic barrier to conducting the claimant's appeal against dismissal in a fair or impartial manner.

 

21. The arrangements made for the initial appeal hearing were deficient in that the respondent company failed to provide to the claimant copies of relevant documents as well as a copy of the relevant CCTV prior to the first appeal hearing. The claimant was written to on 22 January 2014 and invited to contact the respondent company to make arrangements to view the relevant CCTV evidence. The claimant did not respond to that invitation. The appeal hearing was conducted mainly by Mr Julian Morrow who was accompanied by an independent human relations consultant, Louise McGonagle, who also asked questions of the claimant and his representative but played no part in the appeal decision. The appeal transcripts record Mr Morrow acknowledging that he had not read any of the papers or minutes created as part of the investigatory and disciplinary process or viewed the CCTV evidence prior to the first appeal hearing.

 

22. Between the first appeal hearing date and the second hearing date, Mr Morrow conducted additional enquiries. The claimant during the first appeal hearing had emphasised the need for clarification as to why Sam Foster had not immediately queried with him the number of pallets delivered or who off-loaded them for the first delivery on 11 December 2013. Mr Morrow gave evidence he spoke with Sam Foster, the forklift driver who had already been spoken to by Mr Kirkwood, between the first appeal hearing and second appeal hearing. No note was made of this additional enquiry nor was the outcome of the enquiry shared with the claimant to allow him an opportunity to comment but the information obtained indicated it was the size and number of pallets in each of the three stacks that Mr Foster had off-loaded from the second delivery which led him to enquire regarding details of the pallets off-loaded in the first delivery. Mr Morrow also made enquiry with a forklift driver Ken Donaghy who could be seen on the CCTV evidence obtained from Montgomery's yard but again no note was made of the enquiry. However the outcome of that enquiry was shared with the claimant during the 11 March appeal hearing. Mr Morrow made enquiry, subsequent to the 11 March appeal hearing with Mark Montgomery regarding a red van which was observed in the CCTV evidence. No note was made of the enquiry. However the specific relevance of the van was mentioned in the letter advising the claimant of the outcome of his appeal. The details of Mr Morrow's enquiry regarding the van was not shared with the claimant as Mr Morrow considered it was clear there was no possibility of the unaccounted for pallets having been placed in that van.

 

23. Throughout the appeal process concluding with the hearing on 11 March 2014 the claimant made no representation to the respondent company that the CCTV evidence provided to him was not the relevant CCTV for 11 December 2013 or that it didn't relate to the first return of his lorry to the respondent company premises on that specific date. During the March 2014 hearing when the claimant is provided with information of an exercise conducted by the respondent company regarding the timing period between the camera movements of the relevant location and the time it takes a forklift driver to traverse the same location to remove pallets from a lorry in the same position as the claimant's lorry on 11 December 2013, the claimant did not challenge the accuracy of the calculated time period.

 

24. The recording of the CCTV evidence produced to the tribunal contained date and time data visible on the recording. It is clear from the recording made available to the tribunal that the claimant did not follow what he had described as his normal process, "to pull back the covering from the side of the lorry which would leave the pallet load visible and accessible to the forklift drivers before heading to the office with his paperwork". The tribunal did not find credible the allegation made by the claimant in the prepared statement of his evidence lodged with the OITFET and repeated before the tribunal during the hearing that the CCTV he had viewed during the appeal proceedings had related to a different date other than 11 December 2013 and that the CCTV he had viewed in advance of his appeal hearing had contained no time or date data. The tribunal could not conceive a reason why the respondent would wish to take steps to have the date and time data removed from the recording obtained initially from Montgomery's Transport and provided to the claimant as part of the appeal process. The claimant made similar assertions regarding the absence of date and time data on the copies of the CCTV produced as part of the criminal prosecution initiated against him yet no copies of the relevant CCTV were produced to the tribunal in support of this assertion. It would have been possible for the claimant to seek provision of copies from the Public Prosecution Service or PSNI either on a voluntary basis or on foot of an order of the tribunal.

 

25. The claimant was notified by letter dated 18 March 2014 that his appeal had been unsuccessful. The decision to dismiss made at the disciplinary hearing was upheld. The letter records that as the disciplinary matter amounted to misappropriation of company goods and this conduct "irrevocably destroyed the trust and confidence necessary to continue the employment relationship summary dismissal is the appropriate sanction". There is reference in the same letter, as there was in the letter notifying the claimant of his initial dismissal, that the respondent company's disciplinary policy does "not permit recourse to a lesser disciplinary sanction for gross misconduct".

 

26. The respondent company disciplinary policy records employees would "not normally be dismissed for a first breach of discipline except in the case of gross misconduct". Under Disciplinary Rules there was the commonly seen caveat that it was not practicable to specify all disciplinary rules or offences that may result in disciplinary action. Under the heading Gross Misconduct the policy read "Occurrences of gross misconduct are very rare because the penalty is dismissal without notice and without any previous warning being issued. Any behaviour or negligence resulting in fundamental breach of contractual term that irrevocably destroys the trust and confidence necessary to continue the employment relationship will constitute gross misconduct". The General Notes section of the policy makes clear that there are some alternative penalties available as an alternative to dismissal except in cases of gross misconduct.

27. The claimant had not sought alternative employment since the date of his dismissal as he was assessed to be sufficiently unwell mentally to work. He was initially assessed as entitled to Employment and Support Allowance since 21 January 2014 and was still in receipt of same at the date of hearing. The claimant was also in receipt of Personal Independence Payment from 13 October 2016. He had lodged his claim before the industrial tribunal on 28 March 2014 and it was received in the OITFET on that date. While his claim form also alleged that he had been discriminated against on the grounds of religion, this claim was not pursued either at his appeal hearing or before the tribunal.

 

THE RELEVANT LAW

 

Unfair Dismissal

 

28. The relevant law in relation to unfair dismissal is to be found in Articles 126 and following of the Employment Rights (Northern Ireland) Order 1996 (as amended). In particular in this case we refer to Article 130 which provides as follows:-

 

"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 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 -

 

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

 

(b) relates to the conduct of the employee

 

(ba) is the retirement of the employee;

 

(c) is that the employee was redundant or;

 

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

 

(3) (a) In any case where the employer has fulfilled the requirements of paragraph (1) by showing that the reason (or the principal reason) for the dismissal is retirement of the employee, the question whether the dismissal is fair or unfair shall be determined in accordance with Article 130ZG.

 

(4) In any other case 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 of the administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employer, and

 

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

 

29. The leading authority on unfair dismissal in Northern Ireland is the case of Patrick Joseph Rogan  v South Eastern Health and Social Care Trust [2009] NICA 47, as approved and restated in McCann v Antrim Borough Council [2013] NICA 7. Like the present case, Rogan related to a case of alleged misconduct on the part of the claimant for which he was subsequently dismissed for gross misconduct.

 

30. The Court of Appeal considered the case law and in particular the previous decision of the Northern Ireland Court of Appeal in Dobbin  v CityBus Limited where they approved the decisions of the Court of Appeal of England and Wales in British Home Stores  v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd  v Jones [1980] ICR 17 as refined and explained in the judgments of Lord Justice Mummery in Foley  v Post Office , HSBC Bank plc (formerly Midland Bank plc)  v Madden [2000] ICR 1283 and Sainsbury's Supermarkets Ltd  v Hitt [2003] ICR 111.

 

31. The nub of the test which must be applied in unfair dismissal cases was stated by Arnold J in British Home Stores as follows:-

 

"First of all there must be established by the employer the fact of that belief (ie the belief in the misconduct); that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds on 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 two 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 on the basis of being "sure" as it is now said more normally in a criminal context, or, to use the 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, the conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion."

 

32. The Court in Rogan cited further with approval the opinion of Lord Carswell in Re D [2008] UKHL 33 where it was noted that the more serious the allegation, the greater the need for more cogent evidence to overcome the unlikelihood of what is alleged. While bearing in mind that the standard of proof required in a civil case was finite and unvarying, Lord Carswell indicated that there may be situations which make heightened examination necessary, for example, given the seriousness of the allegation to be proved or in some cases the consequences which could flow from acceptance of proof of the relevant fact (see paragraph 17 of the judgment). This approach has been endorsed recently by Lord Justice Elias in his detailed judgment in the case of Turner  v East Midland Trains Ltd [2012] EWCA Civ 1470. At the start of his judgment Lord Justice Elias restated the established principle, that an employment tribunal has to determine whether an employer has acted fairly within the meaning of the English equivalent of Article 130 of the Employment Rights (Northern Ireland) Order 1996 by applying what is colloquially known as the "band of reasonable responses" test. He repeated that it was not for the tribunal to substitute its own view for that of a reasonable employer. He made two important observations about the test. The first was that it must not be confused with the classic Wednesbury test whereby a court can interfere with a substantive decision of an administrator only if it is perverse. The second observation is that it is relevant to have regard to the nature and consequences of the allegations which are all part of the circumstances of the case. He referred to his judgment in A  v B [2003] IRLR 405 where he said,

 

"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 of 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 enquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him".

 

It was also noted in Sainsbury's Supermarkets Ltd  v Hitt [2003] IRLR 23 by the Court of Appeal in England and Wales that the "band of reasonable responses" test does not simply apply to whether the sanction of dismissal was permissible. It bears on all aspects of the dismissal process, including whether the pre-dismissal investigation was fair and appropriate.

 

33. We have also taken into account the fact that, as is recognised, disciplinary procedures should allow an opportunity for a claimant to improve his performance and the guidance given by the Labour Relations Agency in its Code of Practice on Statutory and Disciplinary and Dismissal Procedures. We have considered carefully the case law and are aware that in many cases dismissals for a "first offence" (as in this case) may be considered too harsh a penalty. However we note that the learned authors of Harvey on Industrial Relations and Employment Law indicate that dismissals for a first offence may be justified in three rather different circumstances:-

 

(1)           Where the act of misconduct was so serious (gross misconduct) that dismissal is a reasonable sanction to impose notwithstanding the lack of any history of misconduct;

 

(2)           Where disciplinary rules had made it clear the particular conduct will lead to dismissal; and

 

(3)           Where the employee has made it clear that he is not prepared to alter his attitude so the warning would not lead to any improvement. It is also noteworthy that in cases of theft or dishonesty a single act of misconduct may justify summary dismissal even though the events concerned were small but there was deliberate dishonesty ( see McCorry v McKee t/a Heatwell Heating Systems [1983] IRLR 414).

 

[Harvey, Div D paras 1550 and following].

34. 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."

 

35. 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) [the GB equivalent of Article 130(4)(6) of the 1996 Order, set out at para 13 above] 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."

 

The matter was again considered by the Court of Appeal in England and Wales in Newbound v Thames Water Utilities Limited [2015] EWCA Civ 677, where Bean LJ observed:

 

""The band of reasonable responses" has been a stock phrase in employment law for over thirty years, but the band is not infinitely wide. It is important not to overlook s.98(4)(b) of the 1996 Act [The GB equivalent of Art. 130 (4)(b) of the 1996 Order] which directs employment tribunals to decide the question of whether the employer has acted reasonably or unreasonably in deciding to dismiss "in accordance with equity and the substantial merits of the case". This provision, originally contained in s.24(6) of the Industrial Relations Act 1971, indicates that in creating the statutory cause of action of unfair dismissal Parliament did not intend the tribunal's consideration of a case of this kind to be a matter of procedural box-ticking ... an employment tribunal is entitled to find that dismissal was outside the band of reasonable responses without being accused of placing itself in the position of the employer". (para 61 of the judgment).

 

36. The Labour Relations Agency Code of Conduct on Disciplinary and Grievance Procedures says at Paragraph 8:-

 

"In deciding cases of unfair dismissal, tribunals will take account of an employer's size and administrative resources when deciding if he/she acted reasonably. In small organisations it is recognised that it may not be practicable to adopt all the detailed good practice guidance set out in this Code. However, all organisations, regardless of size must follow the minimum statutory dismissal and disciplinary procedures where these are applicable."

 

37. Paragraph 9 of the Code of Conduct reads:-

 

"When a potential disciplinary matter arises, the employer should make necessary investigations to establish the facts promptly before memories of events fade. It is important to keep a written record for later reference. Having established the facts the employer should decide whether to drop the matter, deal with it informally or arrange for it to be handled formally. Where an investigatory meeting is held solely to establish the facts of a case, it should be made clear to the employee involved that it is not a disciplinary hearing."

 

38. Appeals are also addressed in the Code of Conduct. Paragraph 50 reads:-

 

"A more senior manager not previously involved with the case should hear the appeal. Where a person at the most senior management level has already been involved with the case and there is a manager of the same status who has not, the appeal should be heard by the latter. In the event that neither of these is possible and the same manager who took the disciplinary action, unavoidably, has to hear the appeal, that manager should act as impartially as possible. Records and notes of original disciplinary hearing should be made available to the person hearing the appeal where that person had no previous involvement".

 

Paragraph 47 recommends that it is useful to set time limits for the hearing and that 5 working days is usually enough.

 

REASONS AND DECISION

 

39. We have considered carefully the evidence put before us and the applicable law. We have come to the conclusion that the decision to dismiss the claimant was one which was within the range of reasonable options open to a reasonable employer and that the claimant's dismissal was not unfair. Our reasons for this decision are as follows.

 

40. The claimant's representative suggested that the respondent company had not done as much investigation of the matter as they should have done. We disagree. The investigation was commenced promptly after a question mark was raised over the off-loading of the two deliveries for which the claimant requested off-load dockets. The investigation had involved all relevant personnel and the issue under investigation was not complicated. Mr Kirkwood sought to examine tachograph evidence but it wasn't available. The investigation was adequate for while the CCTV footage at Montgomery Transport was not viewed before the final investigatory interview with the claimant, it was viewed as part of the investigation. Clearly the CCTV footage at Montgomery's confirmed the position stated by the forklift drivers. This gave sufficient evidence for Mr Kirkwood to conclude the matter should move to disciplinary procedure. We are satisfied that Mr Kirkwood had done as much investigation as was reasonable in the circumstances, in accordance with the Burchell test.

 

41. The failure of Mr Elton during the disciplinary hearing to show the relevant CCTV footage as part of the disciplinary process as well as the load/unload documents undermined the fairness of that hearing. The tribunal panel were not convinced Mr Elton had an "open" mind before or while conducting the disciplinary hearing as it is difficult to understand his actions in conducting a "fair" disciplinary hearing without showing to the employee evidence that he considered relevant to his decision. However in Yeung v Capstone Care Limited [2013] UKEAT 0161-13-1302 Mr Justice Langstaff at paragraph 15 emphasised "The fairness of a dismissal has to be viewed in the round, taking, in my view therefore, the appeal hearing together with the disciplinary hearing, and perhaps especially so where there has been no hearing in which the employee participated until the appeal."

 

42. The tribunal have considered the involvement of Mr Julian Morrow against paragraph 50 of the Labour Relations Agency Code of Conduct and Byrne v BOC Limited [1992] IRLR 505 EAT. The tribunal formed the view that Julian Morrow's contact with the police was a formality to hand over items of evidence that the police officer required as part of a criminal investigation. The tribunal gave weight to the fact that no statement of evidence was recorded from Julian Morrow until 28 April 2014. It is clear from the transcript of the appeal hearing on 7 February 2014 that Julian Morrow had not read earlier minutes, statements or watched the CCTV footage gathered as part of the investigation, all the material copied and handed over to the police in January 2014. The tribunal was satisfied that Julian Morrow was not so personally involved in the events that led to the claimant's dismissal or in the decision to dismiss that he should be considered unable to conduct a fair appeal. It was clear from the transcript of the two days appeal hearing the claimant was given every opportunity to present evidence to support his contention that he had brought pallets back to the company on two occasions and two loads of pallets were off-loaded from his lorry. The panel noted that the explanation tendered by the claimant on the third day of the tribunal hearing, that the CCTV footage shown to the tribunal concerned a later visit to the respondent's premises subsequent to his arrival with the first load of pallets, had never been given to the respondent company. Equally it did not appear in the claimant's prepared statement of evidence provided to the tribunal. The crux of the case against this claimant lay with the trawl of CCTV footage conducted by the respondent in particular by Mr Kirkwood and Mr. Elton. The tribunal considered that the appeal hearing while not perfect was "fair" in all the circumstances of this case.

 

43. The other matter raised by the claimant's representative was that dismissal was too harsh a penalty in all the circumstances of the case.

 

44. We can appreciate that the claimant considered the disciplinary action brought against him, particularly as the disciplinary procedure included in the respondent company's handbook refers to the objective of helping an individual to have the opportunity to improve his or her conduct, failed to adequately reflect his previous unblemished record. However the claimant was in a position of trust which he acknowledged during the disciplinary process.

 

45. The tribunal have considered this matter carefully. It may seem harsh to dismiss for a first offence, but as Harvey makes clear, where the act is one of gross misconduct, such as an act involving dishonesty, a single act of misconduct may be sufficient. The tribunal noted Mr Kirkwood gave evidence that the CCTV footage taken from the respondent company back gate showed pallets being off-loaded from the claimant's second run of 11 December 2014. There was no available CCTV evidence to the respondent company of the claimant's lorry arriving and pallets being seen ready for off-loading or being off-loaded in respect of the first delivery claimed by the claimant. The tribunal was concerned that the claimant gave no account in his prepared statement of evidence regarding his movements for the morning of 11 December 2013. His explanation for that omission was "an error on his part" which the tribunal found unsatisfactory.

 

46. The claimant also asserted at the tribunal hearing that he had not picked up that the CCTV footage shown to the tribunal provided no evidence of him walking down the length of the lorry. The tribunal viewed the recording only once and observed there was no evidence of the claimant performing what he had claimed during the disciplinary process was his "usual" practice - to walk down the side of his lorry and draw back the canvas on the sides leaving the pallets on the lorry visible to other staff. This undermined the credibility of the claimant with the tribunal as the transcript of the appeal hearing records him stating that he had watched the CCTV footage a number of times and the "more he watched it he picked up on small things". Further in his prepared statement of evidence the claimant asserted that he tried to make sense of the CCTV provided to him yet there is no specific mention of the claim made at the hearing that there was an absence of a date or time on the CCTV. The tribunal were unable to identify a satisfactory reason why viewing the CCTV footage during the tribunal hearing, which the claimant accepted had no material difference to that provided at his appeal hearing save there was now a date and time visible on the recording, assisted the claimant to recollect a version of events for that date some 3 years later which he never mentioned when questioned during an investigation occurring within days or months of the event. The tribunal were satisfied on the balance of probabilities that the respondent had a genuine belief that the claimant was guilty of misconduct, which amounted to gross misconduct under the respondent's disciplinary procedures and undermined the respondent's confidence and trust in the claimant. The tribunal taking both the evidence gathered and the opportunity provided for the claimant to respond to that evidence during the investigation, disciplinary and appeal hearings are satisfied the respondent had reasonable grounds on which to sustain that belief and at the stage when the belief was formed the respondent had carried out as much investigation as was reasonable in the circumstances of the case, particularly given the contents of the CCTV footage.

 

47. In Bowater v North West London Hospitals NHS Trust (see above) Longmore LJ referred to the fact that it was the Employment Tribunals to whom Parliament had entrusted the responsibility of making what are "no doubt sometimes difficult or borderline decisions in relation to the fairness of dismissal." It is important that we avoid substituting our decision for that of the disciplining employer. We do however have to make a judgment as to whether or not the employer acted reasonably, bearing in mind that there is a range of reasonable options open to an employer in any given situation. The test is not whether we would have dismissed the claimant in this situation: the test is whether or not it was reasonable for the respondent to do so. While the tribunal might have had concern that the respondent's considered themselves without discretion other than to dismiss for an act of gross misconduct, the tribunal took into account that the claimant accepted that his employers were entitled to expect him to show himself to be trustworthy. The CCTV footage and the claimant's inability to explain when the load of pallets may have been off-loaded severely damaged that trust. The tribunal are satisfied on the balance of probabilities that the decision to dismiss in all the circumstances of this case fell within the range of reasonable responses open to the employer and accordingly the claimant's claim of unfair dismissal is dismissed.

 

 

Employment Judge:

 

 

Date and place of hearing: 31 May to 2 June 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: