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Fair Employment Tribunal Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Downey v Department for Regional Development [2007] NIFET 499_00 (28 July 2007) URL: http://www.bailii.org/nie/cases/NIFET/2007/499_00.html Cite as: [2007] NIFET 499_00, [2007] NIFET 499_ |
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CASE REFs: 00499/00FET
00500/00FET
00501/00FET
00792/00
00793/00
00887/00
00901/00
CLAIMANTS: Peter Downey
John Gerard Adair
John Rice
RESPONDENT: Department for Regional Development
The unanimous decision of the Tribunal is that:-
(1) The claimants and each of them were not unlawfully discriminated against by the respondent on the grounds of religious belief and/or political opinion, contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998.
(2) The claimants and each of them were unfairly dismissed by the respondent. As agreed, the claims of the claimants will be re-listed for a hearing to consider the remedy to which each claimant is entitled on foot of the above decision.
(3) The second claimant contributed to his said dismissal, the extent of which the Tribunal assessed at ten per cent (10%). The first and third claimant did not contribute to their said dismissals.
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Members: Mr R Barbour
Mr J Pollock
Appearances:
The first claimant was represented by Mr K Magill, Barrister-at-Law, instructed by Rosemary Connelly, Solicitor.
The second claimant appeared in person and was unrepresented.
The third claimant did not appear and was represented by the second claimant.
The respondent was represented by Mr A Colmer, Barrister-at-Law, instructed by Departmental Solicitor's Office.
REASONS
The first claimant commenced his said employment, as a labourer, in or about 1984; the second claimant commenced employment as a labourer/driver in or about 1985; the third claimant commenced employment as a labourer in or about 1977. Prior to the events, the subject matter of these proceedings, each of the claimants had a clear disciplinary record. In or about 1999/2000, each claimant was employed as a Road Worker 2.
Insofar as relevant and material, the claimants were part of a three man squad operating a mobile spraying unit (MSU). The function of the MSU was to carry out, primarily in the summer months, temporary repairs to the carriageway such repairs would have included treating potholes, carriageway cracking, carriageway deterioration and general sealing of the carriageway. This work was mainly carried out on rural roads. When not engaged with the MSU, each of the claimants carried out a variety of other duties for the respondent. The MSU consisted of a mobile 1,200 gallon bitumen tanker and also a lorry containing stone chippings. The work involved heating the bitumen to the required temperature, by using the vehicle's onboard gas heating system, spraying the hot bitumen onto the carriageway using a lance and applying stone chippings using a shovel. The second claimant operated and drove the tanker and was, in essence, the team leader. In particular, he dealt with all the paper work relating to the work carried out by the MSU (it will be necessary to refer to this later in this decision). The third claimant was the lance-man who operated the lance; but also drove the lorry containing the stone chippings. The first claimant was responsible for covering the tar patch with the stone chippings using a shovel.
The first claimant is unable to write, save in the most limited fashion (for example by signing his name); and cannot read and depends upon his wife and family to assist him in reading. The Tribunal is satisfied that this must have been known by the foremen/supervisors and relevant line managers at the said depot.
There was some evidence on the documents presented in evidence by the third claimant that he also had limited abilities in relation to reading and writing and which the Tribunal was prepared to accept. Like the first claimant, the Tribunal is satisfied that the foreman/supervisors and line managers at the depot would also have been aware of his said limitations.
It is necessary, for the purposes of this decision, to set out the principal parts of the said letters sent to each of the claimants. The Tribunal noted the similarity of the wording used in each letter.
The first claimant:-
"It has been drawn to my attention that:-
(1) On Friday 19 November 1999 you did not report to your depot at Castlenavan after completing your days work.
(2) You did not inform your line manager on that day of the reason for not reporting to the depot.
(3) On Wednesday 24 November 1999 you finished MSU treatment on Derryboye Road at about 2.00 pm and spent the rest of the day tidying up.
(4) When interviewed by Carrie Teggart on Wednesday 24 November 1999 you claimed to have worked on the road on the far side of Downpatrick "where the big grain store is" on Saturday 20 November 1999 from 8.00 am to 12 noon. Inspection of this road (Tullynaskeagh Road) by Stephen Forster and John Braniff on Thursday 25 November 1999 showed that this road had previously been treated. Evidence from the job card for the work shows that it was treated on 16 November 1999, 4 days prior to 20 November 1999.
(5) On Saturday 20 November 1999 you were part of the squad which claimed to have treated 7.91kms and used 180 gallons of bitumen binder at Claragh Road, Drumnaghan Road, Newline Road, Drumaroad Road and Manse Road. Inspection of these roads by Stephen Forster and Brendan McLaughlin on Thursday 25 November 1999 showed that these roads were not treated.
(6) On 23 October 1999 you were part of the squad which claimed to have treated 2.24kms of mountain road from Drumnaquoile to Drumkerragh.
(7) On 6 November 1999 you were part of the squad which again claimed to have treated the same stretch of road. An inspection of this stretch of road by Stephen Forster on 29 November 1999 showed that no MSU treatment was carried out.
The Department takes a very serious view of this type of behaviour. Before deciding what action to take I wish to offer you an opportunity to reply to the charges against you as detailed above. Please let me have a written reply by no later than Friday 10 December 1999.
You are further required to attend a disciplinary interview at 3.15pm on Wednesday 15 December 1999 in Castlenavan depot to answer these charges. I would advise you that you have a right to be assisted at this interview by a friend or colleague who may be a trade union representative".
The second claimant:-
"It has been drawn to my attention that:-
(1) On Friday 19 November 1999 and on Wednesday 24 November 1999 you did not report to your depot at Castlenavan after completing your days work.
(2) You did not inform your line manager on these days of the reason for not reporting to the depot.
(3) You failed to return your vehicle to the depot on Friday 19 November 1999 and on Wednesday 24 November 1999.
These incidents, ie, (1), (2) and (3) above were witnessed by your supervisor, Carrie Teggart.
(4) On Wednesday 24 November 1999 you had left your place of work and were at home at 3.15 pm.
(5) On Tuesday 23 November 1999 you collected bitumen at ICB, Ballyhannon Road, Portadown, despite being told by John Braniff, foreman, on Monday 22 November 1999 to continue carrying out MSU work until the tanker was empty after which the operation was to be stood down for the season.
(6) On 23 October 1999 you claimed to have treated 2.24kms of mountain road from Drumnaquoile to Drumkerragh. On 6 November 1999 you again claimed to have treated the same stretch of road. An inspection of this stretch of road by Stephen Forster on 29 November 1999 showed that no MSU treatment was carried out.
(7) On Saturday 20 November 1999 you claimed to have treated 7.91kms and used 180 gallons of bitumen binder on Claragh Road, Drumnaghan Road, Newline Road, Drumaroad Road and Manse Road. Inspection of these roads by Stephen Forster and Brendan McLaughlin on Thursday 25 November 1999 showed that these roads were not treated".
…..
The letter concluded in similar terms to that set out above for the first claimant; but with an interview at 4.00 pm on 15 December 1999.
Third claimant:-
"It has been drawn to my attention that:-
(1) On Friday 19 November 1999 you did not report to your depot at Castlenavan after completing your days work.
(2) You did not inform your line manager on that day of the reason for not reporting to the depot.
(3) You failed to return your vehicle to the depot on Friday 19 November 1999.
These incidents, ie, (1), (2) and (3) above were witnessed by your supervisor Carrie Teggart.
(4) On Wednesday 24 November 1999 you finished MSU treatment on Derryboye Road at about 2.00 pm and spent the rest of the day tidying up.
(5) When interviewed by Carrie Teggart on Wednesday 24 November 1999 you claimed to have worked on the road on the far side of Downpatrick, "where the big grain store is" on Saturday 20 November 1999 from 8.00 am to 12 noon. Inspection of this road (Tullynaskeagh Road) by Stephen Forster and John Braniff on Thursday 25 November 1999 showed that this road had previously been treated. Evidence from the job card for the work shows that it was treated on 16 November 1999, 4 days prior to 20 November 1999.
(6) On Saturday 20 November 1999 you were part of the squad which claimed to have treated 7.91kms and used 180 gallons of bitumen binder on Claragh Road, Drumnaghan Road, Newline Road, Drumaroad Road and Manse Road.
Inspection of these roads by Stephen Forster and Brendan McLaughlin on Thursday 25 November 1999 showed that these roads were not treated.
(7) On 23 October 1999 you were part of the squad which claimed to have treated 2.24kms of mountain road from Drumnaquoile to Drumkerragh.
On 6 November 1999 you were part of the squad which again claimed to have treated the same stretch of road. Inspection of this stretch of road by Stephen Forster on 29 November 1999 showed that no MSU treatment was carried out".
…
This letter also concluded in the same terms as the letter set out above in relation to the first claimant with the disciplinary interview timed to take place at 2.30 pm.
Before conducting these interviews, Mrs Teggart gave no warning or indication that the claimants were being questioned about potential misconduct, which could lead to disciplinary proceedings nor were they offered the right to silence or informed of the nature of any evidence against them. At the conclusions of these interviews she told the claimants this was a serious matter and that a report would be passed to John Hall and that disciplinary procedures might follow.
The interviews with Mrs Teggart took the form of enquiries by her about the matters, which subsequently were set out in the letter from Mr Hall, dated 1 December 1999.
As set out in the letters dated 1 December 1999 inspections were said to have been carried out of the various roads referred to by, amongst others, Mr Forster, the claimants' foreman and following his said inspections he had reported what was set out in the said letters. No documents, including relevant job cards or any other documents relating to the inspections carried out were attached to the letters sent to each claimant by Mr Hall.
There was no dispute that the second claimant filled in the relevant paper work for this claim and not the first and third claimant. Neither the first nor the third claimant signed for or were asked to read the said form before it was submitted by the second claimant. The second claimant said that he had written out this claim form at break time on the morning of 20 November 1999, when the MSU was still working on the Tullynaskeagh Road. He said that he would often have filled in such forms at break time in the morning as a matter of convenience, rather than waiting until the end of the working day. There was no dispute that the MSU never worked on 20 November 1999 at the said roads, the subject matter of the above claim. The second claimant maintained that he had filled out the claim form for these areas in advance as set out above; but in fact they had not subsequently gone to these sites and had finished work for the day at the Tullynaskeagh Road. Whilst the Tribunal might have been persuaded, albeit with considerable hesitation, that the second claimant, with his experience and copies of the relevant documentation relating to the said job in his possession, might have been able to fill in the claim form in advance, with reasonable accuracy; the Tribunal was not persuaded that the form could have been handed in by him, along with a number of other unrelated claim forms, under some form of mistake, in circumstances where he knew that, whatever may have been the intention at the time when the claim form was filled in, the work had not in fact been done and could not therefore be the subject of a legitimate claim. All the claimants were fully aware that the relevant figures set out in these claim forms were ultimately reflected in the earnings which they received from the respondent. The Tribunal further considers that it was not coincidence that the second claimant, on 29 November 1999, informed his foreman of his mistake; after becoming aware form his interviews with Mrs Teggart on 24 November 1999 that the recent activities of the squad had come under some notice. The foreman had apparently initially agreed to retrieve the form; but, in view of the other ongoing investigations at that time, the return of the form was subsequently refused. In the event, in light of the foregoing, the claimants did not receive any monies in respect of the work, the subject matter of the said claim form.
The relevant job cards or records of inspections carried out, the subject matter of the said charges, and/or copies of the records of the interviews carried out by Mrs Teggart or indeed any other documentation which had been seen and relied upon by Mr Hall, as set out in the said letter dated 1 December 1999, were not attached to the letter or shown to the claimants, before seeking their response in writing by 10 December 1999.
The Tribunal noted that, in relation to their responses, the three claimants in relation to those charges relating to their failure to report to the depot and/or failing to return their vehicles, in the case of the second and third claimants, the thrust of their defence was that their actions were in accordance with long-standing custom and practice, which was accepted by the management at the depot. Both the first and third claimants made it clear that, on 20 November 1999, they had been at work on the Tullynaskeagh Road site and had not worked elsewhere that day. Similarly in relation to the charges of claiming for work not done each made it clear that the relevant forms were completed by the second claimant; and there appears to have been a mistake which was outside their control. The second claimant referred to the mistake in the forwarding of the claim form, as set out above.
Under the disciplinary procedures, which were relied upon by the respondent, it is provided that an officer of at least SPTO rank should write to the employees setting out all the charges against him and giving particulars of the evidence supporting the charges. This letter should also offer the employee the opportunity to submit a reply in writing within the specified period and should also set a date on which the employee should report for interview by the SPTO in relation to the disciplinary charges and advising him of his right to be assisted at this interview by a work friend or colleague who may be a trade union representative. The procedures set out a sample letter to be used; and it is clear that Mr Hall's letter dated 1 December 1999 was intended to comply with this provision in the procedures. The procedure also provides that at the interview the SPTO should have another officer in attendance to make a written record of the meeting. If it is considered necessary the employees' supervisor may also be present. However, the procedure stresses that both management and the employee have the right to call witnesses during the interview. The Tribunal noted that, prior to this disciplinary interview, no reference had been made by the respondent to gross misconduct or indeed dismissal nor had the claimants been informed of their right to have witnesses at the disciplinary hearing.
At each disciplinary hearing, Mr Hall read out the various charges set out in the letter which he had sent to the claimants dated 1 December 1999 and gave each claimant an opportunity to respond. Each took the opportunity but, in essence, each reiterated what had previously been stated, in their written response, in relation to the taking of vehicles home and/or reporting back to the depot at the end of the day and that what had taken place was in accordance with custom and practice accepted by management.
Whilst repeating the charge to the first and third claimant in relation to finishing MSU treatment of the Derryboye Road at about 2.00 pm and spending the rest of the day tidying up and which was never denied by either claimant, Mr Hall still failed to show or set out how what had been done constituted a disciplinary offence. In particular he never put to either claimant what had been stated was wrong and that in fact they had not been working, albeit tidying up, as stated in the charge.
Further, each of the claimants continued to contend that, on Saturday 20 November 1999, they had been working on the Tullynaskeagh Road and had not worked on the Claragh Road/Manse Road sites. Further, they did not deny that the work on the Tullynaskeagh Road had been claimed for on 16 November 1999. Further, there was no suggestion that, by returning to the site to complete/finish off the work previously started, a further sum would have been payable to the claimants. There was some difference between the claimants about why it had been necessary to return to the Tullynaskeagh Road on 20 November 1999; when the claim form stated that the work had been completed on 16 November 1999. It was suggested, inter alia, that it was necessary to return to complete/finish off the work and that this had arisen in some way following praise by the foreman, Mr Cunningham, of work done by the claimants and/or to fully complete the work. Indeed, the Tribunal at the conclusion of the matter remained uncertain why the claimants had felt it necessary to return to the Tullynaskeagh Road; but it was equally satisfied that, by doing so, this had not resulted in any further payment to them for work on that site. In the circumstances, it was further satisfied they had not carried out any work on that day on the Claragh Road/ Manse Road sites on 20 November 1999, as set out in the claim form. This was the claim form which the second claimant had sought to have returned to him due to an error on his part, as set out above.
From the minutes of the interview, it was readily apparent that the claimants, and in particular, the first and third claimants, were in some doubt about what particular roads were the subject matter of these particular charges. This, in the Tribunal's view, was compounded by the failure of the respondent to disclose relevant documents and any records to the claimants, including record of the various inspections relied upon. In this context, it also had to be noted the limited abilities of the first and third claimant to read and write.
Contrary to the submissions by each of the claimants, Mr Hall contended that all staff at the depot were specifically asked to adhere by management policy and report back to the depot at the end of the day; and further that vehicles were not to be taken home.
In relation to the fifth charge involving the second claimant, Mrs Teggart sought to clarify what in fact Mr Braniff had instructed the second claimant. She also confirmed that the second claimant had sought, as set out previously, to recover, due to a mistake, the claim form for the other work claimed for on 20 November 1999 on the Claragh Road/Manse Road sites; but she pointed out that this had been done following her interviews with the claimants on 24 November 1999 and she had told them that an interview would take place. Although Mr Hall had received this further documentation/memos it was at no time disclosed to the claimants by him; nor did he seek their response to what was set out therein.
He then set out in respect of each claimant the reasons for his recommendation.
First Claimant
"The reasons for my recommendation are":-
(a) Mr Downey deliberately did not return to the depot on 19 November 1999
and did not give a satisfactory reason for not doing so nor did he inform his line manager of his intention not to return to the depot.
(b) Mr Downey deliberately claimed that the section foreman praised the squad for doing a good job at Tullynaskeagh Road in order to justify the squad's return to that road on Saturday 20 November 1999. The second foreman (Mr Cunningham) has stated that he did not praise/commend the squad for doing the work at Tullynaskeagh Road. I believe this claim was made by Mr Downey deliberately and in collusion (Tribunal's emphasis) with his squad colleagues in an attempt to obscure the fact that a fraudulent (Tribunal's emphasis) claim was made on his behalf by his squad colleague, Mr Adair, for work done on 20 November 1999 on the roads listed at charge 5, this work claim having been made for the purpose of obtaining a bonus payment.
(c) Mr Downey did not admit to having knowledge of paper work completed on his behalf by Mr Adair. I did not accept that he was unaware of the fraudulent (Tribunal's emphasis) claims and claims being made on his behalf, as referred to at charges 5 and 6.
Investigations carried out following the interview with Mr Downey on 15 December 1999 shows that several duplicate claims were made by Mr Downey's squad during the period between August and October 1999 and that claims were made for treatment of roads between July and November 1999 when there is no visual evidence of the work having been done.
Second Claimant
"Reasons for my recommendation are":-
(a) Mr Adair deliberately ignored his supervisor's instruction to return his vehicle to the depot on Friday 19 November 1999.
(b) Mr Adair deliberately claimed to have treated the same 2.24kms of mountain road on 2 occasions for the fraudulent (Tribunal's emphasis) purpose of obtaining bonus payment, when in fact no treatment had been carried out on either occasion.
(c) Mr Adair deliberately claimed to have treated 7.91kms and used 180 gallons of bitumen binder on 20 November 1999 on the roads listed at charge 7 for the fraudulent (Tribunal's emphasis) purpose of obtaining bonus payment when in fact no treatment had been carried out.
Investigations carried out following the interview of Mr Adair on 15 December 1999 shows that several duplicate claims were made by Mr Adair during the period between August and October 1999 and that claims were made for the treatment of roads between July and November 1999 when there is no visual evidence of the work having been done.
During an interview with Mr Cunningham (client foreman) and Mr S Forster he stated that he did not commend the squad for completing an excellent piece of patching work. I have no reason to doubt Mr Cunningham's statement but believed that Mr Adair deliberately and in collusion (Tribunal's emphasis) with his squad colleagues provided me with false information in order to support his claim to have been working on 20 November 1999, "adding the finishing touches" to what he claimed was said to be an excellent piece of patching work.
The third Claimant
"Reasons for my recommendation are":-
(a) Mr Rice deliberately ignored his supervisor's instruction to return his vehicle to the depot on Friday 19 November 1999.
(b) Mr Rice deliberately claimed that Mr Cunningham (client foreman) had praised the squad for an excellent piece of patching work on Tullynaskeagh Road in order to justify the squad's return to that road on 20 November 1999.
Mr Cunningham has stated that he did not praise the squad for doing the work at Tullynaskeagh Road. I believe this claim was made by Mr Rice deliberately and in collusion (Tribunal's emphasis) with his squad colleagues in an attempt to obscure the fact that a fraudulent (Tribunal's emphasis) work claim was made on his behalf by his squad colleague Mr Adair for work done on 20 November 1999 on the roads listed at charge 6, this work claim having been made for the purpose of obtaining bonus payment.
(c) I do not accept Mr Rice was unaware that the fraudulent (Tribunal's emphasis) claims were made on his behalf as referred to at charges 6 and 7.
Investigations carried out following the interview of Mr Rice on 15 December 1999 shows that several duplicate claims were made by Mr Rice's squad during the period between August and October 1999 and that claims were made for the treatment of roads between July and November 1999 when there was no visual evidence of the work having been done.
"Further to these it has been brought to my attention that:-
(1) There are additional cases between 16 August 1999 and 23 October 1999, when duplicate claims for MSU work had been submitted by yourself as part of a squad - see details enclosed.
(2) There are also additional cases between 3 July 1999 and 13 November 1999 when you were part of a squad which claimed to have treated 44.47kms of MSU work - see details enclosed. Inspection of these roads by Stephen Forster and Mrs C Teggart showed that these roads were not treated.
You are therefore required to attend a disciplinary interview on Friday 4 February 2000 (separate times were set out for each claimant) at the Castlenavan depot.
Each letter also stated that "At this meeting, you will be questioned on the issues raised in Mr Hall's letter of 1 December 1999 and on the additional cases as mentioned above.
You may respond in writing before Friday 4 February 2000, regarding the additional claims.
I would advise you that the right to be assisted at this interview by an associate who may be a trade union representative".
The details attached in relation to these additional charges consisted of a schedule which was very limited in the amount of detail provided; and, in particular, did not set out the detailed backup documentation, which had clearly been used to prepare the said schedule, to identify the said duplicate claims/claims were work had not been carried out, but had been claimed for.
In the letter he referred to the additional charges relating to:-
(a) Duplicate claims.
(b) Claims where there is no evidence of treatment.
In relation to (a) he asked to see relevant job cards/forms signed by the foreman relating to inspection and the diaries of foreman verifying the inspections signed for.
In relation to (b) he sought independent examination of the various roads where it was said no treatment had taken place and which allegations were being vouched for by Mrs Teggart and Mr Forster.
He indicated that he had advised his clients that no interview should take place until these matters had occurred.
The letter was not replied to and the disciplinary hearing proceeded, in front of Mr Moore, on 7 February 2000 attended by the 3 claimants. Mr Doherty was not in attendance.
The issue of the letter from Mr Doherty was raised during the course of the disciplinary hearing with Mr Moore; but Mr Moore rejected Mr Doherty's formal approach.
Mr Moore referred to Mr Hall's recommendation for his dismissal; but still did not provide a copy of same to the claimants and encouraged all the claimants to stay at the disciplinary hearing. The second claimant, on behalf of all the claimants stated that they did not agree to the two new charges; and, whatever words were used, the Tribunal is satisfied that they were clearly seeking further time to prepare their defence in relation to those charges. No further time was allowed.
The Tribunal noted that Mr Moore, as set out in the minutes of the said disciplinary hearing, asked the claimants if they had read all the written charges and were aware of the evidence collated by the Department in support of the charges. The Tribunal noted, that significantly in its view, that there was no reply to this matter set out in the minutes. In any event, as set out above, the Tribunal is satisfied that the claimants had not been provided with all the documentary evidence upon which the respondent was relying before the commencement of this disciplinary hearing.
Unfortunately, Mr Moore fell ill during the course of the disciplinary hearing and it had to be abandoned. It was subsequently arranged that Mr Wilson, Principal Engineer, would conduct the disciplinary hearing instead of Mr Moore. Mr Moore was Mr Wilson's superior; and in normal circumstances Mr Wilson would not have been required to carry out such a disciplinary hearing. Indeed, whilst Mr Wilson had experience of taking part in such disciplinary hearings, he had very limited experience, prior to these events, of conducting such a disciplinary hearing involving serious offences and which required him to determine whether dismissal was the appropriate penalty. A minute of the hearing conducted by Mr Moore was produced, insofar as it had progressed; but again, like the minutes of the previous disciplinary hearing, it was not disclosed to the claimants, in advance of the hearing to be conducted by Mr Wilson. However Mr Wilson did receive a copy of the minute of the hearing with Mr Moore.
In the meantime, Mr Doherty, the solicitor, wrote again to the respondent, by letter dated 21 February 2000, and again sought the documents referred to in his previous correspondence and also the further inspection of the roads, with his clients present.
Mr Wilson replied to the previous correspondence from Mr Doherty by letter dated 13 March 2000 stating, inter alia:-
"You will be aware that disciplinary procedures is an internal process and as such it is not customary to release any documentation to third parties".
He made no response to the request for the further inspections.
Mr Wilson also confirmed in evidence that in writing this letter and refusing requests from Mr Doherty he did so on advice from the respondent's Personnel Department.
Given the continuing failure to produce the documents/reports relied upon by the respondent in relation to each of the charges, it was essential, in the Tribunal's view, that, during the course of the disciplinary hearings that this evidence was put in detail to each of the claimants. Rather, what took place was that Mr Wilson, at best, merely referred to the charges which had been sent to each of the claimants originally by Mr Hall and subsequently by Mr Moore in relation to the additional charges.
In relation to the charges involving failure to report/taking vehicles home, the claimants, in essence, continued to rely on the custom and practice at the depot, as set out before. The more serious charges, which were regarded by Mr Wilson as charges of fraud, albeit it was never expressly stated by him in those terms to the claimants, and relating to the duplicate claims and claiming for work not done, were not put in any detailed manner to the claimants. In particular, there was a failure to go through each allegation in turn, setting out the detailed evidence relied upon by the respondent in support of each allegation. The fact that the first and third claimants had very limited ability to read or write and were not involved in the completion of any of the relevant paper work for these charges did not appear to have been a relevant factor taken into account by Mr Wilson during the course of the hearing.
Despite the seriousness of the charges relating to the duplicate claims and claims for work not done, Mr Wilson refused this offer by the claimants. The second claimant, given his involvement in the paper work, was adamant that on an inspection, attended by the claimants, at the various sites/roads referred to, it would be possible to show whether or not the said charges had merit.
The charges related to many roads over a wide area. Work on any particular road, in relation to some charges involved allegations relating to various items of work along a particular road. Mr Wilson, accepted in evidence to the Tribunal, that such an inspection would have been relevant, if only to show that the claimants' general denial of these charges was not in fact correct. However, in the face of what he had been informed had been ascertained by the line managers/supervisors, on foot of their inspections, and which he accepted without reservation, he was not prepared to entertain the possibility of any such inspection being carried out. In evidence to the Tribunal, the only reason which Mr Wilson could advance for not carrying out such inspections was that he did not have any time and was "up to his neck in work".
Subsequently, at the time of the appeal, as set out later in this decision, the second claimant produced video evidence/photographs, as a substitute for the failure to carry out any inspection in the presence of the claimants.
Similarly, each letter did not attempt to differentiate between the charges and their seriousness, and, in particular, Mr Wilson's view that the charges relating to failing to report and/or taking vehicles home were not, in themselves, sufficient to justify dismissal; but only were so when taken with his findings of guilt in relation to the charges, involving duplicate claims and/or claims for work not in fact done. The letters did not set out his view, it was a combination of all these charges which justified dismissal. The letters further did not set out, in any detailed way, the basis upon which Mr Wilson considered the explanations offered did not justify the behaviour of each claimant. It did not set out why he had reached the conclusion that he had. Each letter, insofar as it set out any basis for the decision, at no time set out expressly that Mr Wilson considered that the claimants, together, had been guilty of fraud, in relation to the charges relating to duplicate claims and/or work claimed for which had not been carried out and/or the basis upon which he considered that the claimants were each guilty of fraud, albeit the first and third claimants had not dealt with the paperwork, the subject matter of any of these charges.
The Tribunal also noted that, in the letter sent to the first claimant, insofar as there was any reference to what had been stated by the first claimant in relation to the charges, there was reference to the first claimant not taking his vehicle home; albeit this was not the subject matter of any charge against him and indeed he was not the driver of either of the vehicles. In relation to the charges relating to the work carried out on the Tullynaskeagh Road the letter merely states, "When I asked if you had completed any paperwork associated with the jobs in question you replied that you had not". Nothing further is stated. Indeed, as set out previously, the first and third claimant had no involvement in any relevant paperwork; but yet, whilst noting what this claimant had said, it does not appear from the letter sent by Mr Wilson that it was taken into account, in any way, in his conclusions about the guilt of the first claimant on this charge. In addition, although the third charge had not featured in Mr Hall's recommendation, dated 18 January 2000 with all its imperfections in wording, it was found to be a charge the first and second claimants were guilty of.
In relation to the third claimant, the reference to what had been stated by him during the course of the hearing, was even more limited but referred, inter alia, to the fact that he had also stated that he was not involved in completion of the paperwork - which, as stated previously, he was not involved in. Again no account appeared to have been taken of this in relation to the finding of guilt, as set out in the said letter.
The letter in relation to the second claimant set out in some more detail some of the explanations put forward by the second claimant in respect of some of the charges, though not his explanation in relation to all of the charges. However, the letter again did not set out why such explanation had been rejected. Indeed, nothing was stated in relation to the second claimant's explanation for the more serious charges, relating to the duplicate claims/claims for work which had not been done.
The Tribunal noted that, although there was evidence before Mr Wilson, at the time of his termination letter, that in relation to charge 5 there had been a misunderstanding with Mr Braniff about his failure to stand down, the letter made no reference to this and the second claimant was still found guilty of the charge. Indeed, in evidence, Mr Wilson accepted this charge should not have been upheld in the letter. In relation to charge 6 and, indeed the additional charges, the amount of bitumen used was very relevant. Reference was made that the second claimant had referred to the various difficulties in calculation of what amount of bitumen had been used. However no reference was made to the detailed figures which had been obtained by Mr Wilson, in relation to the use of bitumen, and which were relied on by him in proof of the said charges. Indeed, at no time were these figures put to the second claimant or any of the claimants.
The Board is an independent body which, as set out in the guidance provided to appellants, is to decide whether the Department's decision to end the employment was fair and whether the proper procedures had been followed. It has a Chairman and two Members; one of the Members comes from a panel nominated by management side, the other from a panel nominated by the trade union side.
The guidance further sets out the procedures adopted by the Board, including the preparation and exchange of statements by both the appellant and Department prior to any hearing. The Members of the Board read the statements prior to the hearing. The Chairman and Board Members are entitled to ask questions to the parties about their statements and, at the conclusion, each side are invited to make closing statements.
The Tribunal was provided with copies of all relevant documents relating to the said appeal, including letters of appeal, the statements of the claimants and the respondent, together with the decision of the Board. No Member of the Board gave evidence to the Tribunal.
In relation to the decision of the Board the guidance provides as follows:- "The Northern Ireland Civil Service Appeal Board was set up on 1 January 1974 as a result of Whitley Agreement and since it inception it has considered cases from certified Northern Ireland Civil Servants. Following introduction of the Northern Ireland Civil Service Appeal Board, new industrial relations legislation include a provision for the setting up of industrial tribunals and remove the need for a Northern Ireland Civil Service Appeal Board since civil servants, like other employees, would be given access to the industrial tribunals. In the event the industrial relations legislation did not result in the UK Civil Service Appeal Board being abolished because of strong representations by the Civil Service Trade Unions. In consequence, the Northern Ireland Civil Service Appeal Board was retained also".
The Board decides whether the decision to dismiss was fair. If the Board decides that it was not, it may recommend to the Head of the Department (in this case the Permanent Secretary) that the appellant should be reinstated or re-employed and, if not, the amount of compensation which should be paid. If the Board considers that some other action is more appropriate, it will recommend accordingly. If a recommendation to reinstate or re-employ is made, the Head of the Department or a relevant officer, authorised by the Head of Department decides whether to accept the Board's recommendation and this decision is final. If a recommendation to reinstate or re- employ is rejected by the Department, the Appeal Board then considers whether to award compensation. At that time, to assist the Board in determining the amount of compensation to be paid, the Department and the appellant are invited to make written representations to the Board, concerning the extent which the officer may have contributed to the dismissal. Any such representations are required to relate only to this issue and not to any other aspects of the case.
The first and third claimants were therefore each informed that the Board had found their dismissal was unfair and further that the Board had recommended that each said claimant should be reinstated to their previous position in the respondent's employment.
As set out above, the first claimant's appeal proceeded to hearing. At the conclusion of same, the Board found that his dismissal was unfair; and further recommended that he also should be re reinstated to his previous position in the respondent's employment. In relation to the decision of the Board, in relation to the second claimant, this decision was provided in writing and set out, in some detail, the history of the matter and contentions of the parties to this appeal.
In its decision, the Board set out its conclusions on four clear substantive issues:-
"(i) Lack of clarity on the Department's side in respect of policy for staff on whether or not they should/could take home vehicles which they use in their daily work;
(ii) lack of clarity on the Department's side in respect of policy for staff with regard to reporting to the office on commencement of work each day and on finishing work in the evening;
(iii) the process employed by the line management at the initial investigation stage of the enquiries ie the interview conducted between line management and Mr Adair on his return to the depot on Wednesday 24 November 1999;
(iv) the procedures followed by the Department in relation to:-
(i) the investigation of the alleged duplicate claims for work made by Mr Adair; and
(ii) the work which the Department claim was never carried out".
In relation to the first point, the Board, after setting out its reasons in some detail, concluded that, while the respondent said they had a clear policy when vehicles could or could not be taken home, the fact that it was not committed to paper had led to confusion. This view was strengthened by the fact that in January 2000 written instructions for staff and risk assessments were introduced; even though this change of policy did not relate specifically to the appeal of the second claimant.
In relation to the second point, the Board concluded that "again policy was vague for staff and it appeared that some staff considered it acceptable to go directly to and from work to home and had, as in the case of the second claimant, been doing so for some time unchallenged. It was only when the events around November 1999 were brought to light that management tried to impose the rules which were obviously not being adhered to up until then". The Board again thought this was an indication of the lack of clarity in policy matters by the respondent.
The Tribunal is satisfied that the main concern of the respondent, upon receipt of the decision, was not in relation to the Board's conclusions on the above policy matters set out at (i) and (ii) above; but rather, in relation to the decision of the Board, on the substantive issues, set out at (iii) and (iv) above.
It is necessary to set out the decision of the Board on these issues in full.
"It is accepted that when incidents involving staff occur it may be necessary to carry out preliminary enquiries where the facts are not clear, before considering formal charges. However in such cases employees who are under investigation should be told orally and in writing of the right to be assisted by a trade union representative or colleague of his/her choice and of the right to remain silent.
It would appear that in this case a "fact finding" interview was held with Mr Adair on 24 November 1999 but that he was not told of his rights.
Formal disciplinary charges were put to Mr Adair on 1 December 1999 and there was a hearing on 15 December 1999. Following this, additional charges were put to Mr Adair on 25 January 2000. A further disciplinary interview was arranged for 7 February 2000 to deal with Mr Downey, Mr Rice and Mr Adair. Unfortunately, the Operations Manager (Mr Moore) who conducted the interview became ill before Mr Adair's case was heard. The papers were passed to Mr Wilson who held a disciplinary interview with Mr Adair on 24 February 2000.
At the Appeal Board hearing it became apparent that in relation to the 2 additional charges in particular there was considerable difference of opinion between Mr Adair and the Department about the facts relating to allegations in duplicate claims for MSU work and claims for work done.
The Department submitted evidence to the effect that inspections had shown that certain work which had been claimed for had not been undertaken, whereas Mr Adair said that the work had been done and he produced photographs and a video to substantiate his case.
Mr Adair also said that he had asked on several occasions to be allowed to accompany management on inspection of the roads in question but this request had been refused. Furthermore, Mr Adair said that he had requested copies of the minutes of the disciplinary hearings and these had been denied to him.
For their part the Department contended they were under no obligation to make these available.
The Board had serious concern about these 2 matters. First, it is important in disciplinary cases for facts to be clear and as far as possible undisputed. Secondly, procedures should contain a provision for those charged with an offence to have an opportunity to record their comments on the note of the disciplinary interview. This did not happen in Mr Adair's case.
Procedures
The Board were satisfied that the Department had taken the correct decision in instigating an investigation into what they considered to be problems with the workforce. However the Board was not satisfied that the procedures followed by the Department were fair for the reasons set out in the section of this report dealing with substantive issues.
This procedure (referred to by the Board) provided, (in contrast to the procedure relied upon by the respondent at the relevant time) that, when preliminary steps/enquiries were taking place, a person who is under investigation should be told, inter alia, orally and in writing of the right to be assisted by a trade union representative or colleague of his/her choice and the right to remain silent; these rights applied whether or not the matter under investigation could lead to criminal proceedings.
It was agreed by the representatives of the parties, at the hearing of this matter, that the above procedure, referred to by the Board was not applicable. These procedures, in fact, apply to non-industrial staff and were never relevant to disciplinary procedures involving the claimants - who were industrial staff for these purposes.
However, it was also agreed, at the hearing, that there was, in existence, a set of procedures for industrial staff, which had been introduced in or about May 1988 for use in the civil service, including the respondent. This was to replace the procedures relied upon by the respondent; but for some reason, which was not clear to the Tribunal, these new procedures had never been introduced by the respondent, nor it appeared by various other government departments. This "new" procedure was in similar terms to the procedure referred to by the Appeal Board. It also made it clear that an employee, who was under investigation, should be told orally and in writing of the right to be assisted by a trade union representative or colleague of his/her choice and of the right to remain silent. As set out previously, the procedure adopted by the respondent in these matters did not have such a provision; and, at the interviews held on 24 November 1999 none of the claimants were told of their said rights as set out above - in particular the right to remain silent and to be assisted by a trade union representative or a colleague.
It is correct to acknowledge that under the "new" procedure, the system of appeal is similar and also provides for an appeal, as set out above, to the Northern Ireland Civil Service Appeal Board.
As set out above, under the relevant procedures of the Civil Service Appeal Board, if there is a decision to reinstate or re-employ and the head of the department decides not to accept the Board's recommendation that decision is final.
In the letters sent to each of the claimants, which were in similar terms, it was stated that account had been taken of:-
(a) the details set out in the respondent's submission to the Board;
(b) the record of the Appeal Board;
(c) the fact that there was nothing in the report of the Board to indicate that the substance of the charges had been disproved.
The Tribunal noted that no account was expressly taken of the submissions of each of the claimants to the Board, save insofar as these were referred to in the decision of the Board. However, in this context, it has to be recalled that the decision of the Board was only sent out in detail in relation to that of the second claimant. The Board did not set out, in any way, any detailed decision in relation to the first and third claimants. Further, no consideration was given to the letters of appeal by the claimants or to the video/ photographs which had been produced by the second claimant at the appeal, as set out above in the Appeal Board's decision.
The said decision not to accept the recommendation was taken at a meeting in early August 2000, lasting approximately an hour, attended by Mr R Spence, the Permanent Secretary of the respondent, Mrs L Brown, the Deputy Secretary and Mr David Gallagher, the Department's Director of Personnel. Formally, Mr Spence took the decision; but after consultation with Mrs Brown and Mr Gallagher. No record was kept of what was said at this meeting or the precise reasons for the decision.
It is important to note at this stage that the claimants were not given any opportunity to make any representations or play any part at this meeting or to have sight of and/ or, if necessary, challenge any documents relied upon by the Permanent Secretary, before the decision was taken by him at that meeting.
The Tribunal is satisfied that, in addition to the documents referred to in the said letter dated 15 August 2000, the participants at the meeting had before them a memorandum dated 25 July 2000 from Mr J Drew, Head of Road Services Direct, to Mr B Crawford, the Director of Engineering - Road Service. This was a detailed document seeking a decision by the Permanent Secretary not to accept the recommendation of the Board to reinstate the claimants. It challenged, inter alia, the conclusion of the Board on the charges relating to the failure to carry out instructions in relation to taking vehicles home/reporting back to the depot.
It referred also to the fact that the respondent had been challenged by the Board about the use of a procedure which was not in fact applicable to these staff; though it also recognised a revised procedure was in force, but had never been introduced.
Particular stress was placed on what it was believed was the focus of the Board, namely on procedural matters rather than on the substance of the charges and also suggested that the issue of fraud appeared to have played no part in the Appeal Board's decision. The memo also stated as follows:-
"13
Consequences of decision
Since the decision there has been something like dismay in the Castlenavan area. Line management at all levels, foremen, PTO, SPTO and PPTO are convinced that dismissal was the correct course of action. If these men are reinstated there is concern that it would be impossible to maintain discipline. The effect on morale and discipline would be severe. A note from the SPTO is attached".
It was not clear from the documents, seen by the Tribunal, what was the document from the SPTO attached. The Tribunal came to the conclusion that this was a document, namely an e-mail, obtained from John Hall, which had been sent to Mr Moore and copied to Mr Drew. Having regard to its contents, as set out below, it was clearly the basis for the conclusions set out above in paragraph 13. This e-mail (dated 20 July 2000) was obtained by the second claimant. It has to be noted that Mr Hall was the person who had initially set out the charges, held the meeting on 15 December 1999 and had recommended to Mr Moore that each of the claimants should be dismissed. Despite his said involvement, as set out above, he was invited to send the e-mail, which set out the following. This was after the conclusion of an appeal which had found the dismissal to be unfair and had recommended reinstatement.
He stated, "Further to your call yesterday, I wish to confirm that I could not willingly accept the return to employment of the 3 number industrials concerned. My reasons are as follows:-
Despite the content of the e-mail, the claimants were never given any opportunity to challenge the contents and, in particular, the very serious allegation that there were threats made by at least one of the claimants to members of staff while the investigations were ongoing.
Indeed, in the course of evidence before the Tribunal, the Tribunal was not given any detail about this threat nor where the information, the basis for it, had been obtained. It was a particularly serious allegation and, in the Tribunal's view, highly prejudicial to the claimants.
The Tribunal is satisfied that at the meeting, at which the decision was taken not to accept the recommendation of the Board, there was not any detailed consideration of these matters. Indeed, in the time available, it would not have been possible to do so. Whilst there was an acceptance that there had been procedural irregularities, the conclusion of those attending the meeting was that the substance of the respondent's case and the substance of the allegations made against each of the three claimants had not been disproved in any shape or form and that the Appeal Board, having found the procedural failings, had not come to conclusion on the charges themselves. It was concluded that, although the respondent accepted the decision was unfair and that there had been procedural irregularities, the Appeal Board had not expressly dealt with the individual charges; and that, regardless of the foregoing, the charges of fraud, in particular, still stood and that, in such circumstances, reinstatement was not appropriate. As set out in the recommendation by Mr Drew, it was decided the recommendation of the Board to reinstate should not be accepted. In this context, in deciding not to accept the recommendation of reinstatement, account was also clearly taken of the reaction of those who had taken the view, regardless of the determination of the Appeal Board, that the claimants were guilty as charged. It was further clear that, in deciding not to accept the reinstatement of any of the claimants, that the claimants were being taken as equally guilty of the fraud charges. This was regardless of the fact that the first and third claimants had no part to play in the paperwork, had difficulties in reading and writing and the allegation of their joint involvement in this matter had never been properly addressed by the respondent during the course of the disciplinary procedure. It was clear, from the evidence of Mr Gallagher, that the view that was taken at the meeting was that all three members of the team were equally guilty of these fraud charges; and that, although the first and third claimants may not have played any direct part in the paperwork, the subject matter of the disputed claims, they must have known what was going on. This appeared to be based on the fact that, in the experience of Mr Gallagher at least, that persons such as the first and third claimants would always have known the sums to which they were entitled to at the end of any week, regardless of their inabilities to read or write. He therefore concluded, knowing this, they must equally have known that they were getting sums in excess of what they might have expected, given their work completed. The second and third claimants therefore must have been aware duplicate claims had been made or claims for work not done even if they had not been involved in the specific paperwork for each said claim. At no time, throughout the disciplinary process was this ever put to the first and third claimants; nor were they given an opportunity to challenge this conclusion reached by Mr Gallagher and accepted by the others attending the meeting.
However, as the Tribunal was asked to consider, as part of its decision on liability the issue of contributory fault; of the claimants, it is correct to state that the Board made an assessment, in relation to the issue of contributory fault/culpability; after receiving submissions, from the respondent, that each of the claimants were 100% responsible for their dismissal and, from the claimants, a denial that they were in any way responsible. The Board did not give any reasons; but it assessed that a deduction of 25% was fair and equitable in the case of the first and third claimants and 50% in the case of the second claimant. In the absence of any reasons for its said decision on the issue of contributory/culpability, the Tribunal did not find the decision of the Board, on this issue of any assistance or relevance.
(a) misappropriation of granite kerb stones;
(b) unauthorised use of departmental vehicles to load and carry the kerbs.
He was down-graded to basic craftsman and given a formal written warning. In 1993 he was away from work without permission for a period of 2 hours and was given an informal warning.
In or about 1990 Mr McSpadden was driving a vehicle owned by the respondent and caused the vehicle considerable damage due to his negligence in driving without due care and attention and at an unsafe speed. He was given a formal warning and given a monetary penalty of £30.00.
In or about 1992 Mr Herron was given a formal warning for overloading his vehicle.
In or about 1996/67, irregularities were discovered in the store at Castlenavan, where Mr Mees was a storeman. There was a police investigation, which resulted in no further action. Following his admission that he had borrowed two files and a bottle of glue for use at his home, albeit mistakenly on his part, he was given a final formal warning.
The persons taking the decisions against the claimants did not take the decisions above in relation to any of the said comparators.
None of the employees referred to above were employed at Castlenavan.
Although the originating applications were presented in this matter in or about 2000, the provisions of the Fair Employment & Treatment Order (Amendment) Regulations (Northern Ireland) 2003, which came into operation on 10 December 2003 applied to these proceedings by reason of the transitional provisions contained in Regulation 2 of the said Regulations.
Regulation 24, in particular, amended Article 38 of the 1998 Order in relation to the burden of proof applicable to these proceedings - by the insertion of Article 38A, which states as follows:-
"Article 38A
Where on the hearing of a complaint under Article 38, the complainant proves the facts from which the Tribunal could (Tribunal's emphasis), apart from this Article, conclude in the absence of an adequate explanation that the respondent -
(a) has committed such discrimination or harassment against the claimant, or
(b) is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the complainant.
The Court shall (Tribunal's emphasis) uphold the claim unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed that act".
In the recent decision of the Northern Ireland Court of Appeal in the case of Brigid McDonagh & Others -v- Samuel Thom t/a The Royal Hotel Dungannon [2007] NICA3 the court approved the earlier decision of the English Court of Appeal in Igen -v- Wong [2005] IRLR 285. The case of Igen -v- Wong had considered provisions equivalent to Article 38A of the 1998 Order; and had also approved, with amendment, the guidelines set out in the earlier decision of Barton -v- Investec Henderson Crosthwaite Securities Limited [2003] IRLR 332. The Court of Appeal in the McDonagh decision confirmed that it was necessary for a tribunal to go through a two stage decision making process if a complaint of unlawful discrimination was to be upheld.
"The first stage required the complainant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination against the complainant. The second stage (which only came into effect if the complainant had proved those facts) required the respondent to prove that he did commit or if he is not to be treated as having committed the unlawful act, if the complaint is not to be upheld".
The Court of Appeal also confirmed that the amended Barton guidance, as to the correct approach to be taken to the incidence of the burden of proof, applied to a case of unlawful discrimination pursuant to the 1998 Order, as well as to all other forms of unlawful discrimination.
In the recent decision of the English Court of Appeal in the case of Madarassy, Nomura International PLC [2007] EWCA Civ 33, a case of sex discrimination, in considering the issue of what is meant by the use of the word "could" the Court confirmed that "the bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination".
Further Lord Justice Mummery in the Madarassy decision stated:-
"Could conclude" in section 63A(2) must mean that "a reasonable tribunal could properly conclude" from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment from the reason for the differential treatment. He would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory "absence of an adequate explanation" at this stage (which I shall discuss later), the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.
"A person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of this Order if -
(a) on either of those grounds he treats that other less favourably than he treats or would treat other persons; or
……".
Under Article 3(3) of the 1998 Order, a comparison of the cases of persons of different religious belief or political opinion under paragraph 2 must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.
In the decision of the House of Lords in the case of Shamoon -v- Chief Constable to the Royal Ulster Constabulary [2003] IRLR 287, a case of sex discrimination, Lord Rodger held that the relevant circumstances are "those which the alleged discriminator takes into account when deciding to treat the woman as he does when deciding to treat the man as he treats, or would treat, him. If an employer dismissed a woman because she is persistently late for work over a three month period, then the relevant circumstances will be her persistent lateness over a three month period. The employer's treatment of the woman must be compared with how he treats or would treat a man in the same or not materially different circumstances ie where he has been persistently late for work over a three month period".
In considering, following the guidance set out in Igen -v- Wong, whether it could conclude, in the absence of an adequate explanation, that the respondent had committed an act of unlawful discrimination the Tribunal had to consider whether the disciplinary offences of the claimants and those committed by the comparators, who were relied on by the claimants, were comparison of "like with like". In the Tribunal's view, none of the comparators were charged with the same or similar disciplinary offences.
The offences of not reporting back to the depot and/or driving the vehicle home did not provide a relevant comparison, from which a finding of unlawful discrimination could be established, with any of the offences of the said comparators.
In the Tribunal's view, in relation to the remaining offences of making duplicate claims or claiming for work that had not been done, none of the said comparators were found to have committed such offences. The offences of Mr Truesdale involved misappropriation of granite kerb stones/unauthorised use of departmental vehicle to load and carry the kerb. In the Tribunal's view, these offences were not the same as the offences of the claimants, although they also involved an element of dishonesty, the relevant circumstances relating to such dishonesty were materially different.
In the case of the other comparators relied upon by the second and third claimants, the offence of Mr McSpadden related to damaging the respondent's vehicle, due to his negligent driving and the offence of Mr Herron, related to overloading of his vehicle. In the Tribunal's view, the offences were not the same and were materially different and did not provide a relevant comparison from which the finding of unlawful discrimination could be established. Having regard to the offence of Mr Mees, he was disciplined for borrowing some equipment, mistakenly, for use at home following discovery of irregularities in the store for which he was responsible, following a police investigation, but there was no finding that he had committed theft or indeed any finding of dishonesty. Again, in the circumstances, the Tribunal did not consider that the offence of Mr Mees provided the necessary comparison of "like for like" with the disciplinary offences of the claimant.
So, in the circumstances, the Tribunal did not consider that the first, second or third claimants had established facts from which the Tribunal could conclude the respondent had lawfully discriminated against the claimants. In light of this finding, it was therefore not necessary for the Tribunal to consider the second stage of the decision making process, as referred to by the Court of Appeal in the recent case of McDonagh -v- Samuel Thom t/a The Royal Hotel Dungannon.
Under Article 130(1) of the Employment Rights (Northern Ireland) Order 1996 it is provided:-
(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 (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) The reason falls within this paragraph if it -
….
(b) relates to the conduct of the employee.
The Tribunal is further satisfied that the conduct referred to, when taken together constituted gross misconduct. If the charges had related only to making duplicate claims/claiming for work not done, the Tribunal would have been satisfied that such conduct amounted to gross misconduct.
"Where the employer has fulfilled the requirements of paragraph (1); the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and
(b) should be determined in accordance with equity and the substantial merits of the case".
Indeed it was a consideration of these issues that were the main focus of the hearing before the Tribunal and, in particular, issues in relation to the reasonableness of the investigation, the conduct of the disciplinary hearings and appeals which were carried out by the respondent and procedural matters relating thereto, together with the sanction of dismissal imposed in relation to each claimant.
"In a case where an employee is dismissed because the employers suspects or believes that he or she has committed an act of misconduct, in determining whether the dismissal is fair, the employment tribunal has to decide whether the employer who discharged the employee on the ground of the misconduct in question entertained the reasonable suspicion amounting to a belief in the guilt of the employee of the misconduct at that time. This involves three elements. First, there must be established by the employer the fact of that belief; that the employer did believe it. Second, it must be shown that the employer had in his mind reasonable grounds on which to sustain that belief. Third, the employer at the stage at which he formed that belief on those grounds, must have carried out as must investigation to the matter as is reasonable in all the circumstances of the case".
In the judgment of Forbes J, he refers to the fact that the employer was following a code of practice laid down and agreed by both sides of the industry - "It was in effect the bible on what should happen. It was not for the tribunal to re-write an agreed of that kind".
In the Tribunal's opinion, this is putting the matter too highly; and, in particular, in light of the practices and procedures which any disciplinary process should have, and which have been approved by the courts in the intervening years. However, the Tribunal does note that, in finding as it did in applying the facts of the particular case, the appeal tribunal made it clear that it was merely determining whether the employer had acted reasonably (ie as required under Section 130(4) of the 1996 Order).
The Tribunal fully recognises that the test of reasonableness is also applicable to this matter. However, in the Tribunal's view, the fact that there was an agreed procedure does not mean in applying that test, that a dismissal applying the agreed procedures cannot be found to be unfair, pursuant to Article 130(4) of the 1996 Order. Undoubtedly, the fact that there is an agreed procedure is a factor which a tribunal must take into account; but, in the Tribunal's view, it cannot be used in the sense of an almost absolute defence, which is a possible interpretation of the decision of the Employment Appeal Tribunal in the East Hertfordshire District Council case - with its reference to the procedures having the equivalence of the bible. To do so, would allow an employer to continue to adopt and follow practices and procedures which are manifestly unfair to an individual employee, whatever may have been the original justification for the adoption of such agreed procedures.
One case was found, namely Adivihalli -v- Export Credits Guarantee Department (UK) EAT 917/97 (Decision of Mr Justice Morrison [President]) [27 March 1998].
In that case, a civil servant employed in the civil service was dismissed for gross misconduct arising out of a fraud in relation to the purchase of a raffle ticket with money advanced to him by his employer. He appealed to the Civil Service Appeals Board, whose procedures/powers were in similar terms to those applicable to the Northern Ireland Civil Service Appeal Board. In the course of its judgement, the Employment Appeal Tribunal considered the effect of the right of appeal to the Civil Service Appeals Board and the provisions relating to that appeal.
"Equally, with great respect to the argument which was put to us, namely that because, under the procedure involving the Civil Service Appeals Board, the Board did not have the power to require the employer to give effect to its decision that there should be re-instatement, its ceased to be an appellate process within the meaning of what was said by Lord Bridge (in West Midland Co-operative Society Limited -v- Tipton [1986] ICR 192 at page 202); a contention which goes much too far. It is true that the appeal board was entitled to allow an appeal or to dismiss an appeal. If it allowed an appeal then it obviously had power to make recommendations. But it was an independent body and it was unlikely, therefore, the various departments would wish to confer on such an independent body the right to compel it to take back employees in whom they had lost confidence. But it does not follow from that that the appeal to the Civil Service Appeals Board was incapable thereby of curing a procedural defect, it would depend.
Having regard to the foregoing authorities the Tribunal, concluded that, in determining the issue of whether the dismissal was fair or unfair, it was necessary for it to consider the whole process, including not only the appeal to the Northern Ireland Civil Service Appeal Board but also the decision of the Permanent Secretary to refuse to accept the recommendation of re-instatement made by the Board.
As Lord Bridge in the above case of Tipton stated, in the course of his judgment, "both the original and the appellate decision by the employer, in any case where the contract of employment provides for an appeal and the right of appeal is invoked by the employee, are necessary elements in the overall process of terminating the contract of employment".
The Court of Appeal held:-
"An employee should only be found guilty of the offence with which he is being charged. It is a basic proposition, whether in criminal or disciplinary proceedings, that the charge against the defendant or the employee facing dismissal should be precisely framed and that the evidence should be confined to the particulars given in the charge. Care must be taken with the framing of a disciplinary charge and the circumstances in which it is permissible to go beyond that charge in a decision to take disciplinary action are very limited. Where care has clearly been taken to frame a charge formally and put it formally to an employee, the normal result must be that it is only matters charged which can form the basis for a dismissal.
In the present case, the degree of dishonesty and misconduct found by the employers in the course of their disciplinary proceedings was not such that the Employment Tribunal was disentitled from finding that dismissal was outside the range of the employer's reasonable responses. The charge against the applicant did not allege that he had acted dishonestly. It was not alleged that he had taken the vehicle without permission, only that he had taken it abroad without permission. Nor did the disciplinary panel make any finding that he had been dishonest".
In this context, the Tribunal also noted the judgment of Wood (P) in the case of Spink -v- Express Foods Limited [1990] IRLR 320 when he held:-
"It is a fundamental part of a fair disciplinary procedure that an employee with a case against him. Fairness requires that someone accused should know the case to be met; should hear or be told the important parts of the evidence in support of that case; should have an opportunity to criticise or dispute that evidence to produce his own evidence and argue his case".
(i) The Tribunal must take a broad common sense view of this situation.
(ii) That broad approach should not necessarily be confined to a particular moment, not even the moment when the employment is terminated.
(iii) What has to be looked for in such a broad approach over a period was conduct on the part of the employee which is culpable or blameworthy or otherwise unreasonable and
(iv) The employee's culpability or unreasonable conduct must contribute to or played a part in the dismissal.
It is the employee's conduct only that is relevant and not that of the employer (see Alders International Limited -v- Parkins [1981] IRLR 68).
The charges set out in the letter sent to each claimant were, in the Tribunal's opinion, badly framed and did not have the necessary precision required. For example, the charges against the first and third claimant relating to the fact that on 24 November 1999 they had spent the afternoon tidying up, following treatment on the Derryboye Road, did not, as subsequently acknowledged at the hearing, amount to any offence; and certainly did not suggest that there was any concern that these claimants had not been doing as they stated - which was the intended thrust of the charges, as agreed by Mr Hall and Mr Wilson, during the course of their evidence to the Tribunal.
Further, in relation to the charges of claiming for work not done/duplicate claims, whilst there may be implications of dishonesty this was not expressly stated nor that the respondent believed each claimant had been guilty of fraud. Issues of fraud and dishonesty are very serious allegations. In the Tribunal's view, given that this was the belief of the respondent, the claimant was entitled to have it set out clearly and the charges precisely framed. At no time, during the disciplinary process was this done. Further, although the second claimant was the team leader and known to have been responsible for the paper work for these charges, again it was never properly set out in the charges the basis for the liability which was being attached to the first and third claimants. Merely to make the charge on the basis that each claimant was part of a squad was not, in the view of the Tribunal, sufficient in the case of the first and third claimants. In this context, it also has to be noted that the first and third claimants had limited liabilities in relation to reading and writing, which was known about by their line managers; but yet no account was taken of this, in particular, in relation to these charges of duplicate claims/claims for work not done, were there was a failure to set out clearly and unambiguously the precise basis on which liability was being attached to them in the circumstances.
The Tribunal in its findings (see further paragraphs 3.14 - 3.19) has set out in some detail the failures of Mr Wilson in relation to his conduct of the disciplinary hearing of each claimant and the decisions taken by him at the conclusion of these hearings. In light of these findings the Tribunal is satisfied that Mr Wilson did not properly investigate the charges against the claimants and, in particular the more serious charges relating to duplicate claims/work not done and further failed to carry out the various steps, as set out in the above paragraphs, which would have enabled the claimants to properly and fairly defend themselves in relation to those charges. The crucial failures, in the Tribunal's opinion, were not only the failure to provide the claimants with all the relevant paper work relied upon but also the failure to allow any form of further inspection involving the claimants. The failure to allow such an inspection by Mr Wilson, albeit he recognised its potential relevance, because he was "up to his neck in work" was not in the Tribunal's opinion a valid and fair reason - not least when the seriousness of the charges is taken into account and the respondent's clear view of what had taken place amounted to fraud. In such circumstances, the Tribunal believed it was incumbent upon the respondent to make the necessary time available. In this context it was also to be noted that none of the claimants had any disciplinary record or indeed come under any notice in relation to their work with the MSU. Each had a long service record. In light of this, their request for a joint inspection was even more relevant and should have been properly considered. There was no good reason for the failure of the respondent to do so.
The failure to carry out such inspections in the face of the claimants' denial of the charges together with the failure to provide the relevant supporting documentation meant that the charges were unable to be properly investigated and there were therefore fundamental and serious procedural failures in the conduct of the disciplinary process.
The Tribunal, in light of its findings (see further paragraph 3.20) also considered that the letters of dismissal sent to each claimant by Mr Wilson were inadequate and failed to properly and appropriately deal with the charges made against each claimant and the reasons for his decision. Each claimant was entitled to have been given a letter which adequately and properly set out these matters - not least having regard to the fact that any appeal was not an internal appeal but had to be made to the external appeal board, to whom detailed submissions were required to be made by the claimants, if they wished to appeal the decision.
The claimants were given no opportunity to see or consider or indeed challenge the memorandum prepared by Mr Drew dated 25 July 2000 (see paragraph 3.24) for the respondent not to accept the recommendation to the appeal board; and which was central to the ultimate decision by the Permanent Secretary not to accept the said recommendation. Indeed, it subsequently transpired that part of the contents of that memorandum resulted from an e-mail obtained from Mr Hall. Mr Hall, it must be recalled, had played a significant role already in the disciplinary process resulting in the dismissal of the claimants. The e-mail included detailed reasons why the claimants should not been re-instated. It is not necessary, in light of the Tribunal's decision, to consider these reasons in any detail. However, it has to be recognised that a 'normal' appeal system often can result in an employee successfully over-turning a decision taken by line management. The line manager in such a case may find it difficult to accept the decision of the appeal (normally by a higher level of management); but that is something he has to do, however difficult that may be. Otherwise, there would be little point in having any appeal system.
In this particular case there was the additional highly prejudicial allegation contained in the e-mail, which was attached to Mr Drew's memorandum that threats had been made by at least one of the claimants (unidentified) while investigations were ongoing. Despite this, the claimants never got an opportunity to challenge any of these matters set out either in the memorandum or the e-mail itself.
The appeal board members did not give evidence to the Tribunal. Certainly the appeal board, in its detailed decision in relation to the second claimant, laid considerable stress on the procedural failures and unfairness of same. These failures undoubtedly had a serious impact on the whole decision making process, including the ascertainment of the facts upon which decisions could be properly taken. The Tribunal did not find it surprising that the appeal board did not find it appropriate, in such circumstances, to make any finding on the substantive charges themselves. Indeed, having found such failures in procedure, the Tribunal did not consider the appeal board could have properly done so. The failures of procedure, outlined by the appeal board, were not, in the Tribunal's view, merely technical failures; but rather substantive failures, in particular, in relation to the charges of duplicate claims/claims for work not done which went to the heart of the whole fact finding process in relation to the said charges brought against each claimant.
Regardless of same, the respondent clearly took the view that, despite the procedural shortcomings and the unfairness of same, the appeal board were not disputing that fraud had taken place. For the reasons set out above, the Tribunal does not consider that that was an appropriate conclusion to make. Crucially, the claimants never got the opportunity to challenge the respondent's interpretation of the appeal board's finding.
There was no opportunity for the claimants to appear before the Permanent Secretary (ie at the meeting in early August involving Mr Spence, Mr Gallagher and Mrs Brown) when all of the failures, referred to above, could have been appropriately and properly dealt with. The discussion at the meeting, at which the decision was taken not to follow the recommendation of the appeal board, did not involve a detailed consideration of the whole disciplinary process or what had taken place at the appeal board. It did not consider the submissions of each of the claimants to the appeal board, save and so far as these were referred to in the decision of the board, nor was consideration given to the letters of appeal by the claimants or to the video/photographs which had been produced by the second claimant at the appeal, as set out above in the appeal board's decision. The recommendation of Mr Drew, which was considered at the meeting was clearly central to the decision of the Permanent Secretary. The claimants got no opportunity to challenge its contents. Indeed the memorandum and the attached e-mail was providing to the respondent a further opportunity to set out its case against the claimants. An opportunity which was taken in the absence of the claimants.
In the Tribunal's view, this failure to give any opportunity to the claimants to properly challenge the refusal of the respondent to accept the recommendation of the appeal board made the appeal process unfair, regardless that it may have been an agreed procedure, which did not give such an opportunity.
The main focus therefore, in relation to any issue of contributory fault, related to the duplicate claims/claims for work not carried out. In view of the substantive serious procedural failures, outlined previously, which go to the heart of ascertaining the facts relevant to the proof of those charges, including, in particular, the failure to provide the relevant supporting documentation/inspection record and/or to allow further inspections involving the claimants, the Tribunal, subject to one matter set out below, was therefore unable to properly consider or reach any conclusion about what extent, if at all, the claimants or each of them had in fact committed such acts. There was the added difficulty to take into account that the first and third claimants had no involvement in the relevant paperwork relating to these charges and the respondent failed to deal in any way with the issue of their culpability in relation to these said charges. Indeed, the Tribunal found itself in a similar situation to that of the appeal board, as set out above, where, due to the said failures of investigation and/or procedure it did not make any determination about the involvement of the claimants, if any in the said charges. Thus, the Tribunal concluded it was not in a position to make any finding of contributory negligence, subject to the one matter set out below, against the claimants or either of them or to assess the amount of any such contributory fault.
In the relation to the second claimant however there was one matter which the Tribunal considered should be the subject of a finding of contributory fault. The second claimant (see further paragraph 3.4) submitted a claim for work done on various roads on 20 November 1999; and which resulted subsequently in the seventh charge made against him. The responsibility for filling out the said form and the making of the said claim to the respondent was that of the second claimant. It was accepted that the team had never worked on that road on that date. The Tribunal was not satisfied that this claim form could have been handed in by the second claimant under some form of mistake. The second claimant knew, when he handed in the form, the work had not been done. He knew that what was set out in a claim form had relevance to what was paid to the team. In the circumstances, the second claimant, by putting in the form as he did, was involved in blameworthy conduct, which contributed/played a part in his ultimate dismissal. His submission of the claim form resulted in the bringing of one of the charges, at the commencement of the disciplinary process. It is correct the second claimant attempted to retrieve the said form and no payment was in fact made to the second claimant or any member of the team. However, the Tribunal is not satisfied that this occurred because he suddenly remembered his mistake; but believes it was because, following the initial interview with Mrs Teggart he knew the activities of the team would come under scrutiny.
In light of what ultimately occurred, in the course of the disciplinary process, the Tribunal came to the conclusion that the second claimant's contribution should be assessed at a modest amount, namely 10%.
Chairman:
Dates and place of hearing: 30 June 2006, 24- 28 October 2005, 2 March 2006, 31 May 2006, 1- 2
June 2006, 26 - 27 June 2006 and 30 June 2006, Belfast.
Date decision recorded in register and issued to parties:
