THE INDUSTRIAL TRIBUNALS
CASE REF: 757/03
CLAIMANT: Stephen Bailie
RESPONDENT: Office of the Police Ombudsman for Northern Ireland
DECISION
The unanimous decision of the tribunal is that:-
- The claimant was unfairly dismissed by the respondent.
- As agreed, the claim of the claimant will be re-listed for a hearing to consider the remedy to which the claimant is entitled to on foot of the above decision.
- By consent the title of the respondent is amended to that set out above.
Constitution of Tribunal
Chairman: Mr N Drennan QC
Panel Members: Mr V Crawford
Mr H Lysk
Appearances
The claimant was represented by Mr D. Flanagan, Barrister-at-Law, instructed by Edwards & Co., Solicitors.
The respondent was represented by Ms S. Bradley, Barrister-at-Law, instructed by Johns Elliott, Solicitors.
Reasons
- The claimant presented an originating application to the tribunal on 10 March 2003, in which he claimed, inter alia, that he had been unfairly dismissed by the respondent when he was dismissed from his position as an investigating officer following the investigation by the respondent of a complaint which had been made against him. The respondent, by notice of appearance, received by the tribunal on 15 April 2003, stated that the claimant was dismissed for gross misconduct after a detailed investigation and disciplinary hearing into a complaint made against him. At the date of the said notice, the said decision to dismiss was the subject matter of an internal appeal by the claimant. There was no dispute that the subsequent appeal of the claimant against the said decision to dismiss was unsuccessful.
- .1 The claimant, who was born on 11 March 1961 was employed by the respondent as an investigating officer from on or about 2 October 2000 and was dismissed from his said position with effect from 10 March 2003.
- .2 The representatives of the parties, prior to the commencement of the hearing, agreed a statement of the following issues which they contended the tribunal were required to determine in this matter, namely:-
(i) The reason for the dismissal of the claimant was fair, being a reason
which falls within Article 130(2)(b) of the Employment Rights (Northern Ireland) Order 1996 that relating to the conduct of the claimant.
(ii) Whether the respondent acted reasonably in treating the conduct of the claimant as a sufficient reason for dismissing the claimant.
(iii) Whether the investigation undertaken by the respondent was reasonable in all the circumstances.
(iv) Whether the disciplinary hearing carried out by the respondent was reasonable in the circumstances.
(v) Whether the appeal procedure provided by and carried out by the respondent was reasonable in all the circumstances.
(vi) Whether on the basis of the evidence adduced the finding of gross misconduct was within the band of reasonable responses.
(vii) Whether dismissal was a reasonable sanction in all the circumstances.
(viii) Whether reinstatement is practicable in the circumstances.
It was agreed at the commencement of the hearing that the tribunal would firstly determine the issue of liability – namely, whether the claimant was unfairly dismissed by the respondent. If necessary, a further hearing would be arranged to consider any remedy and any issue relating thereto to which the claimant would be entitled, on foot of the said decision.
- The tribunal made the following findings of fact, insofar as relevant and material, after hearing evidence from the claimant, Mr M. Benbow, a Senior Investigating Officer with the respondent, Mr D. Wood, Executive Director of the respondent and Mr S. D. Pollock, Chief Executive of the respondent.
- .1 S.M., a serving police officer stationed at Strand Road, Londonderry, was involved in a disturbance at Portrush on 8 February 2001 when she was off duty. As a result of this disturbance a complaint was made against her by a member of the public, which was referred to the Police Ombudsman's Office to investigate. The case was allocated to D.W., an investigating officer, who was assisted by the claimant. On 16 January 2002, D.W. and the claimant conducted, at Coleraine Police Station, a taped recorded interview with S.M. about the complaint made against her. She denied the allegations and left the police station.
- .2 On the evening of 16 January 2002, the claimant together with D.W. and two other friends went for a meal and then subsequently went to Kelly's Nightclub in Portrush. At all times the claimant has maintained that the evening passed without incident, and, in particular, he did not see nor have any contact with S.M. at Kelly's Nightclub on that particular evening.
- .3 On 18 February 2002, S.M. telephoned the Police Ombudsman's Office and left a message for D.W. to contact her by telephone, which he subsequently did later that day. In the course of the telephone conversation S.M. complained about the conduct of the claimant at Kelly's Nightclub on 16 January 2002 and, in particular, that he had discussed the complaint made against her in front of a group of her friends who she was with. She also stated that she had taken legal advice from her solicitor, Ms Boyd of Babington & Croasdaile, Solicitors. She indicated she did not wish to follow her solicitor's advice to make a formal complaint, as she did not want anyone to lose their job, and she was informing him of her unhappiness about the incident. D.W. informed the claimant of the allegations made against him by S.M. which he denied and D.W. then informed a Senior Investigating Officer, L.M., of the said conversations with the claimant and S.M.
- .4 On 9 April 2002 D.W. received a message from a member of staff of the respondent informing him that S.M. had called and asked for the date of the interview he had had with her and she had been given the relevant information. On 17 April 2002, in the course of a telephone conversation with Ms Boyd of Babington & Croasdaile, Solicitors, she had also asked for the date of the interview which he had provided – namely 16 January 2002.
- 5 On 18 April 2002 Ms Boyd wrote on behalf of her client S.M. a letter in which she made a complaint against the claimant which stated, inter alia,
"The complaint relates to an incident which occurred at Kelly's Entertainment Complex in Portrush County Antrim on the evening of 16 January 2002 (tribunal's emphasis).
We understand that Mr Bailie had interviewed the client on the afternoon of 16 January in relation to an allegation against our client which is under investigation by your office.
Our Client instructs us that your officer, whilst in an intoxicated state, approached her at the above premises and proceeded to discuss details of the earlier interview. Obviously our client felt this conduct was inappropriate. Our client found your officer's behaviour intimidating. She felt distressed, embarrassed and humiliated and indeed asked your employee to refrain from harassing her. Your officer only moved away when a male colleague of our client told him to leave.
We would ask you to investigate our client's complaint forthwith …"
- .6 On or about 27 May 2002, David Wood, Executive Director of the respondent, appointed Senior Investigating Officer Michael Benbow to investigate S.M.'s complaint against the claimant. By letter dated 28 May 2002 Mr Benbow informed the claimant of his appointment to investigate the complaint made against him, involving the circumstances surrounding an incident at Kelly's premises on the evening of 16 January 2002. At the relevant time Mr Benbow's substantive post was as a Superintendent with Dyfed-Powys Police. He had been seconded to the respondent from in or about March 2001 as a Senior Investigating Officer; in that capacity he was involved in the investigation of the conduct of police officers in accordance with the statutory provisions relating to the respondent. In his substantive post he had also been involved in a number of investigations involving the conduct of police officers. He had never been involved in the investigation of a complaint of gross misconduct by an employer against an employee.
- .7 Mr Wood gave him no specific terms of reference, other than to investigate the complaint and gave him no instructions on how he was to carry out his investigation or his precise role in the matter. He suggested that Mr Benbow should take advice from the Human Resources Department of the respondent about the procedure. The tribunal is not satisfied that he did so, in any meaningful way, before commencing his investigation or during the course of his investigation.
- .8 On 25 June 2002, Mr Benbow interviewed and took a signed statement from S.M. in which she outlined her complaint against the claimant. She contended that on the same evening, after the interview which had taken place on 16 January 2002 at Coleraine Police Station into the complaint made against her, she attended a function at Beetles Restaurant in the Kelly's Entertainment Complex at Portrush, accompanied by a number of colleagues and friends; and following the meal the group had gone and sat in the bar adjacent to the restaurant. She then complained that the claimant, who was drunk, had started to talk about the complaint made against her, the contents of the interview, his findings following same, and also to repeat same within the hearing of the group she was with and had had to be asked to leave by one of the members of the group.
- .9 In her statement, S.M. did not express any doubt that the incident, the subject matter of the complaint, was said to have occurred on 16 January 2002, on the evening of the interview which he had had with the claimant at Coleraine Police Station. Ms Boyd, in her letter of complaint referred to previously, did not suggest that there was any doubt about the said date. If there had been, the tribunal would have expected some reference to have been made in the body of the said statement or in the course of the said letter. The tribunal did not consider the declaration, at the outset of the statement by S.M., that the statement was true "to the best of my knowledge and belief" was sufficient, in itself, to suggest that she had any doubt about the date of the incident. Certainly, Mr Benbow, at no time referred in his first report of his investigation, to which reference shall be made later, that at this stage in his investigation there was any doubt expressed to him that the said date of the incident was not on 16 January 2002. In the course of the statement she referred to the names of various other members of the group who were with her. At the conclusion of the interview Mr Benbow obtained the relevant contact numbers/addresses of the persons referred to so he could interview them. Mr Benbow then subsequently interviewed and took statements from those so identified by S.M. and also from D.W.
- .10 At the start of each said interview with those identified by S.M., Mr Benbow informed each interviewee that S.M. had made a complaint that on 16 January 2002 she was at the said nightclub where she alleged she was accosted by Stephen Bailie, a member of P.O.N.I., and asked each interviewee were they there.
All confirmed that they were there on the said date with S.M.; and all with one exception, namely B.G., confirmed in their signed statements witnessing S.M. being spoken to by the claimant on the evening of 16 January 2002 after they had been together at a function at the said Beetles Restaurant and had moved into the adjacent bar area from the restaurant.
- .11 On 4 September 2002 Mr Benbow, who was accompanied by David Johnston from the respondent's Human Resources Department, interviewed the claimant who was accompanied by his union representative, Mr D. Donnelly. In correspondence prior to the meeting, it was made clear that the meeting was not a disciplinary hearing but an investigatory meeting. Notes of the interview were taken by Mr Johnston who subsequently produced a summary of the said interview; which made clear, at the outset, that the summary was not intended to be a verbatim note of the interview but was intended to detail the main points that were discussed. During the course of the interview Mr Benbow put to the claimant the allegations of S.M., namely, that on the evening of 16 January 2002 at Beetles Restaurant in Kelly's Nightclub he had abused his position and cited to the claimant the matters referred to previously in general terms and set out more specifically in her statement, including that he had made her feel she was going to lose her job, that she had started to cry and that he had told her to be quiet. He also put to the claimant in general terms the statements of each of the witnesses of S.M.
- .12 He accepted that, following the interview he had with S.M. at Coleraine Police Station that he and D.W. had gone for a meal with two friends who were serving police officers. He further accepted that, following the meal, they had gone to Kelly's Entertainment Complex, but he denied either speaking to or seeing S.M. or that any such incident, as described by her and/or any of her witnesses, had taken place.
- .13 Following the interview it was agreed that Mr Johnston would prepare a typed copy of the notes which would be circulated for signature, as a true reflection of the points raised. This was done by Mr Johnston on 5 September 2002 and signed by Mr Benbow the same day. The claimant did not sign the notes. He said, in evidence, that he did not do so as he did not believe it was an accurate reflection of the content of the interview. He further said, in evidence, that he had been informed by Mr Benbow, at the conclusion of the interview, that he was to marshal and take statements from his own witnesses and that this had not been reflected in the said typed notes of interview. Mr Benbow denied that this had been said, but rather that the claimant had wished to speak to the witnesses first before he gave Mr Benbow their names. The tribunal preferred the evidence of Mr Benbow in this matter and considered that the notes accurately reflect what had taken place, and that the claimant was to give to Mr Benbow the names of the witnesses after he had spoken to them. The tribunal notes that the claimant did give the names of the persons to Mr Benbow, within a short period thereafter, and he subsequently interviewed them. The tribunal further notes that the claimant and his union representative did not give, on receipt of the notes, any indication why the claimant was refusing to sign the interview notes prepared by Mr Johnston, nor did he do so when he again met Mr Benbow on 10 September 2002, as set out below.
- .14 Following the interview with the claimant and receipt of the said names, Mr Benbow took statements from the other police officers on 5 September 2002, who had accompanied the claimant and D.W. on the evening of 16 January 2002. They confirmed that they had been with the claimant on that evening at Kelly's Nightclub but stated that they had no knowledge of any such incident as described by S.M. A further statement was taken by Mr Benbow from D.W. on 6 September 2002, in which he again confirmed that he had no knowledge of any such incident taking place at Kelly's Nightclub on 16 January 2002.
- .15 On 10 September 2002 the claimant made a further statement to Mr Benbow, at the claimant's request, in which the claimant indicated that one of the witnesses of S.M., namely D.G., had a grudge against the claimant arising out of a past experience where he had allowed a senior police officer, who was his friend, and brother-in-law of D.G., to stay at his home following a marriage breakdown. Mr Benbow did not re-interview this witness about this allegation, nor did he make any attempt to follow it up.
- .16 Later on 10 September 2002, Mr Benbow informed the claimant, in writing, that with effect from 10 September 2002 a decision had been taken to suspend him from duty on full pay, pending the outcome of the investigation and disciplinary hearing; he was further informed the alleged misconduct was being treated as potential gross misconduct and that he would be suspended pending the outcome of a disciplinary hearing which would be convened as soon as possible.
- .17 On or about 26 September 2002, the claimant through his union representative, sent to Mr Benbow a statement from a Reserve Constable (M.B.), who was a friend of the claimant, and which had been obtained by the claimant. This witness stated, inter alia, that he had been warned by another police officer in or about March 2002 that S.M. was making allegations about the claimant and bad mouthing him and the respondent and that she was going to make a complaint against the claimant and would have the last laugh on the respondent. Again, Mr Benbow took no steps to follow up the matters set out in this statement.
- .18 On 30 September 2002, Mr Wood wrote to the claimant informing him he was to attend a disciplinary hearing on 16 October 2002 to consider four allegations, which were set out as follows:-
(i) On 16 January 2002 at Kelly's Nightclub, Portrush, you breached the code of conduct of the Office of the Police Ombudsman for Northern Ireland in that without authority you revealed confidential information about a public complaint you were investigating.
(ii) On 16 January 2002 at Kelly's Nightclub, Portrush, you breached the code of conduct of the Office of the Police Ombudsman for Northern Ireland in that without authority you revealed confidential information about a public complaint you were investigating causing abuse and distress to S.M.
(iii) On 16 January 2002 at Kelly's Nightclub, Portrush, you breached your legal obligation under Section 63 of the Police (Northern Ireland) Act 1998 by communicating in public the proceedings of an interview you had conducted with S.M.
(iv) On 16 January 2002 at Kelly's Nightclub, Portrush, you behaved in a manner which was likely to bring discredit and embarrassment to the Office of the Police Ombudsman for Northern Ireland.
Included with this letter was a report (the first report), prepared by Mr Benbow and including copies of relevant statements and exhibits. The letter also informed the claimant that all information he proposed to use was to be sent to Mr Wood at least seven days before the disciplinary hearing.
- 19 The first report was undated but the tribunal is satisfied it must have been prepared at some date prior to the sending of the letter dated 30 September 2002. The tribunal was satisfied that Mr Benbow had given this report to Mr Wood before Mr Wood wrote the letter to the claimant on 30 September 2002 informing him of the allegations to be considered at the disciplinary hearing arranged for 16 October 2002. The report was lengthy and set out, in some detail, the facts of the complaints made by S.M. and the contents of the various statements obtained by Mr Benbow from S.M. and her witnesses and of his interview with the claimant and the statements obtained from D.W. and the other witnesses named by the claimant, as referred to previously. However, there was no reference in the report to the further statement obtained on or about 26 September 2002 by the claimant from the other police officer M.B., which would again suggest the report was prepared prior to the receipt of the said statement, but after 10 September 2002.
The report not only referred to the facts of the complaints by S.M., but also referred to the precise allegations to be relied on, in the terms that were subsequently used by Mr Wood in his letter of 30 September 2002.
In addition, Mr Benbow concluded his report with a section headed "Merits of Complaint" in which he analysed and commented in some detail on the evidence as found by him. He noted, for example, that "it is clear that both Stephen Bailie and the complainant attended the Club that evening, it is highly unlikely that the complainant could have known that Stephen Bailie was at the Club unless she was present". Further, after noting that one of S.M.'s witnesses was annoyed that her name had been mentioned, without any consultation with her beforehand, to establish whether she was prepared to make a statement, Mr Benbow drew the conclusion that "it can hardly be then said this witness or any other has colluded and conspired to make false statements against Stephen Bailie".
However, Mr Benbow also comments in this section, in contrast to the foregoing, on the fact that the claimant insisted on speaking to his two witnesses, before he gave their names to Mr Benbow, to establish if they were willing to make statements in support of him. Mr Benbow denied, in evidence, that the inclusion of this reference in his report had any relevance to the merits of the matter or that it was in some way an attack on the claimant's credibility – but yet, despite saying this, he still could not explain why it had been included by him in the merits section of his report. The tribunal considers it was included in order to attack the claimant's credibility.
Mr Benbow informed the tribunal that he understood his role was to gather information, namely the evidence, but he also felt it would have been wrong for him not to comment on the strength or otherwise of the evidence so found. He did not see that such comments could result in any difficulties in his role as the presenting officer at the disciplinary hearing and, in particular, for Mr Wood whose role at the disciplinary hearing was to come to conclusions on the evidence; and especially if the latter was to draw different conclusions to those put forward by him in his report. He did not see any difficulty in him taking on a similar role to Mr Wood in setting out his views on the merits of the complaint, set out in his report.
Finally, he recommended in his report that there was sufficient evidence for the claimant to face a disciplinary panel – which recommendation Mr Wood subsequently accepted. Mr Benbow acknowledged that in his role in conducting an investigation into a complaint against a police officer it would be normal practice for him to draw up such a report, setting out not only the evidence as found by him in relation to the complaint, but also to make comments on the merits of such complaints in light of the evidence found by him.
- 20 By letter dated 7 October 2002, Brendan McCarthy, Regional Officer of the claimant's trade union, wrote to Mr Wood alleging that two of S.M.'s main witnesses had misled the respondent by telling deliberate lies regarding the night of 16 January 2002. He indicated that the two witnesses were in Kosovo, on secondment on that night - which not only discredited their statements, but also all those of S.M.'s witnesses who had all claimed to be together on that night. The union asked for this to be immediately investigated and for all charges to be dropped.
- 21 Mr Wood, in reply to Mr McCarthy, informed him that he had passed the information to Mr Benbow, whom he stated was the investigating officer, and advised that the proper forum to raise such issues was at the disciplinary hearing. Mr McCarthy then insisted, in a letter dated 10 October 2002, that this issue was investigated prior to the disciplinary hearing, which had been adjourned in the meantime. This proposal was subsequently agreed to by Mr Wood, who indicated not only would the disciplinary hearing be adjourned but the matters would be fully investigated.
- 22 Mr Benbow, following this exchange of correspondence, went back to S.M. to see if she could confirm in any way the relevant date as 16 January 2002, having advised her previously on the telephone that there was a query on the date. She did so by speaking on the telephone to her sister, who had previously given a statement on her behalf. Her sister confirmed that she would not have been out on the evening of 16 January 2002 as she was on an early shift on 17 January 2002, whereas on 23 January 2002 she was off. S.M. then signed a statement on 11 October 2002 to that effect; indicating that she had checked with her sister and the relevant date was 23 January 2002 and she had made a mistake about the date of the incident, but the incident itself had happened. Her sister made a statement on the same date stating she now believed, for the reasons set out above, that the date in all probability was 23 January 2002 and not 16 January 2002. Mr Benbow telephoned the other witnesses informing them there had been a query on the date and asked them whether they had any paper work to assist or identify the date. He subsequently obtained further statements from all of the said witnesses, who had previously given statements to him on behalf of S.M. Each now indicated that the date was not 16 January 2002, but rather all now believed it was 23 January 2002, setting out various reasons why they were probably mistaken about the earlier date and were now satisfied that it was 23 January 2002.
- .23 Following the receipt of the statements from S.M. and her witnesses Mr Benbow wrote to the claimant stating, inter alia, "following further enquiries into this matter it has become apparent that there was some misunderstanding (tribunal's emphasis) regarding the date this incident is alleged to have taken place. I therefore consider it necessary to conduct a further investigatory meeting with you prior to proceeding with the disciplinary hearing; he stated his intention to hold the said meeting on 5 November 2002".
- .24 The claimant said, in evidence, that he was shocked and angered by the terms of the letter and that it gave him concerns about the nature and quality of Mr Benbow's investigation. The tribunal is prepared to accept, in the circumstances, that the claimant was so shocked given the above acceptance by Mr Benbow that there was a misunderstanding of the date. This, in the tribunal's view, was confirmed by his union representative's letter of 30 October 2002 raising issues relating to this acceptance of a new date of 23 January 2002, now relied on by S.M. and her witnesses, despite what had been stated earlier, and contending that, in the circumstances the claimant had no case to answer for and the allegations should be withdrawn.
- .25 By letter dated 1 November 2002, Mr McCarthy, informed Mr Benbow that the claimant was ill; and he sought a postponement of the proposed meeting and reiterated his demand that all allegations be withdrawn. The meeting did not take place. By letters dated 27 November 2002 and 5 December 2002, which the claimant said he never received, Mr Benbow indicated he still wished to have an investigatory meeting. The tribunal is satisfied, after considering the relevant postal records of the respondent that the claimant received these letters. The claimant contended, in evidence, that he had decided by this time, on advice from his union representatives, not to attend any further investigatory or disciplinary hearings. The tribunal is not prepared to accept this was the reason. If it had been, the tribunal believes it would have been stated at the time by either the claimant or his representative. Indeed, the tribunal notes at no time did the claimant or his representatives do so. In a letter dated 17 February 2003, the claimant confirmed the failure to attend the meeting of 5 November 2002 was due to health reasons and that any subsequent non-attendance at any further meetings was the subject of discussions between the respondent and his representative. In fact, there was no evidence of any such discussion at this time. Further, at the disciplinary hearing itself, which the claimant did not attend, his union representative indicated his non-attendance was due to the potential stress of the hearing making him ill and further that the claimant was in agreement with the hearing proceeding in his absence. The letter of 5 December 2002 indicated that there were enclosed copies of additional statements/exhibits obtained in this enquiry. The tribunal is satisfied that the letter enclosed the additional statements taken by Mr Benbow, as referred to above, from S.M. and her witnesses following the issue of the change of date arising; but it does not believe the letter contained the additional report file ("second report"), to which further reference is made below.
- .26 Following the failure to respond to the said correspondence Mr Benbow wrote on 20 January 2003 to the claimant, with a copy to his union representative, to inform the claimant that a disciplinary panel had been arranged for 27/28 February 2003. The tribunal is again satisfied, after examining the postal records, the claimant and his representative received these letters; but they both failed to reply to the said correspondence.
- .27 Mr Benbow prepared the said second report; but, as with his first report, it was undated. It was not clear to the tribunal when it was first produced by Mr Benbow or given to Mr Wood. Mr Benbow was unable to assist the tribunal. The tribunal has concluded that at no time was the second report, unlike the first report, sent to the claimant before the proposed disciplinary hearing. In addition, at no time prior to the proposed hearing, nor in the letter of 20 January 2003, was the claimant informed, as he had been in the letter of 30 September 2002, of the precise dates or details of the allegations which were to be the subject matter of the disciplinary hearing. Despite the terms of the letter of 20 October 2002, with its reference to the said misunderstanding about the date, the letter had indicated that Mr Benbow wished to hold a further investigatory meeting, which presumably was to have some relevance whether the respondent intended to proceed to a disciplinary hearing and/or what charges were to be proceeded with. As set out above, no such further investigatory hearing did take place. But yet, at no time prior to the said hearing, did the respondent inform the claimant that, having failed to attend any such investigatory meeting, the respondent had decided to proceed on the same charges as previously advised, but on the basis of a changed date namely 23 January 2002; nor did it send to him a copy of the second report – which contained all the matters upon which the respondent intended to rely at any such disciplinary hearing.
- .28 The tribunal has come to the conclusion, albeit without some misgivings, that the second report was not prepared before Mr Benbow wrote to the claimant on 22 October 2002. Whilst he had come to the conclusion that there had been misunderstanding over the date he still was making reference, at that time, to the necessity for an investigatory meeting. The tribunal is satisfied that the second report must have been prepared at some time before it was decided to conduct a disciplinary hearing, as indicated to the claimant in the letter 20 January 2003. Surprisingly, since it was to be relied on at the disciplinary hearing, there was no reference in the second report to the fact that no such further investigatory hearing had taken place or the circumstances, as set out above, in which it had not taken place.
In the course of his second report Mr Benbow referred to the allegations as set out in the first report, but with the change of date from 16 January 2002 to 23 January 2002. He referred to the additional statements which he had obtained from S.M. and her witnesses in relation to the change of date. He seems, in the tribunal's view, not to have appreciated that the change of date was a major issue in itself which would require to be determined by the disciplinary panel. Again, as in the first report, he included in the report a section headed "Merits of Complaint". At the outset of the section he states "there is clearly a mistake (tribunal's emphasis) in relation to the date of the alleged incident". He drew conclusions, inter alia, in relation to the credibility of the witnesses and why he believed that it would be incredible to suggest they had all got together to conspire against the claimant and his feeling that if it were a conspiracy they would have at least made sure of the date. He made no reference to the claimant in the report and, in particular, the history of the correspondence, referred to above, and his failed attempts to arrange investigatory meeting with the claimant.
- .29 A further letter was sent on 18 February 2003 to the claimant and his union representative by Mr Benbow confirming the date of the disciplinary hearing. The letter to the union representative contained a warning from Mr Benbow that if the claimant did not attend the disciplinary hearing, without good cause, the panel might continue the hearing in his absence. Both letters noted that the claimant had not confirmed his attendance at the hearing, and the claimant was asked in the letter to him to do so. Neither the claimant nor his representative replied to the said letters, save, by letter dated 26 February 2003, the claimant's union representative faxed to Mr Benbow further witness statements for the disciplinary hearing scheduled to take place on 27/28 February 2003. The letter set out the names of the persons providing the said statements.
- .30 The said statements were from the claimant and four other persons whom the claimant stated were with him at his home on 23 January 2002 and, in particular, that he had not been present in Kelly's Nightclub Portrush, on 23 January 2002. One of the signatories was M.B., who had given the earlier statement on 26 September 2002, referred to above. No details of addresses were provided. The undated statements were typed and signed and addressed to "to whom it may concern". The tribunal, whilst acknowledging that he had not been informed that the date of the complaint had been changed from that formally given to him, as set out in Mr Wood's letter of 30 September 2002; it was satisfied that although he had not been furnished with the second report he had been sent the additional statements obtained by Mr Benbow in the letter of 5 December 2002. He would have thus been aware that the matter of the date of the incident, the subject matter of S.M.'s complaint, was likely to be a relevant issue at the disciplinary hearing. Certainly, the tribunal does not think that the claimant or his union representative were taken by surprise, given the forwarding of the said statements, that at the disciplinary hearing the date of the alleged incident relied on by the respondent would be 23 January 2002 after S.M. and her witnesses had changed in their statements the date of the incident from 16 January 2002 to 23 January 2002.
- .31 Paragraph 9 of the Labour Relations Agency Code of Practice relating to disciplinary and grievance procedures provides that "when drawing up and applying disciplinary procedures employers should have regard for the requirements of natural justice. This means workers should be informed in advance of any disciplinary hearing of the allegations that are being made against them together with supporting evidence and be given the opportunity of challenging the allegations in evidence before decisions are reached".
The respondent's relevant disciplinary procedures stated in paragraph 1.3 that the said procedures take account of the guidance contained in the L.R.A. Code of Practice on Disciplinary and Grievance Procedures.
- .32 The disciplinary hearing was held on Thursday 27 February 2003. The disciplinary panel was stated to be Mr David Wood, Executive Director (Chairman) and Mr Jim O'Hagan, Director of Corporate Services. The latter had no decision making role, and was apparently present to advise Mr Wood on policy and procedure. He did not give evidence to the tribunal and it was not too clear to the tribunal what input, if any, he had in the process.
Mr Wood, at the outset of the hearing, outlined the said disciplinary charges and, in particular, indicated that the date of the relevant incidents was 23 January 2002. The claimant's trade union representative, Mr McCarthy, who was not called to give evidence, as set out in the notes of the disciplinary hearing, confirmed that the claimant would not be in attendance as he thought that the stress of the process would make him ill. Despite this, Mr McCarthy refused Mr Wood's offer of an adjournment and further confirmed that the claimant was agreeable to the disciplinary hearing proceeding in his absence. Significantly, in the tribunal's view, Mr Wood also clarified, after Mr McCarthy raised the issue that the claimant had never been formally charged with anything in relation to 23 January 2002, that following investigation it was now alleged the incident took place on 23 January 2002 and not 16 January 2002. He suggested the point had been clarified in correspondence and reports to the claimant prior to the hearing. This in fact was not correct. Although the further statements had been forwarded to the claimant, the second report had not been shared with the claimant nor had he been sent a letter expressly stating that the date of the incident, the subject matter to be considered at the disciplinary hearing, was 23 January 2002 and not 16 January 2002. However, Mr McCarthy, the claimant's trade union representative, did not raise any challenge to what Mr Wood had stated, nor did he seek, at any time, any adjournment to consider his position and/or to consult with the claimant. Mr McCarthy then presented the five statements, which had been previously faxed in his letter of 26 February 2003. He gave no explanation why the statements had not been provided previously. Further, he declined the opportunity, given by Mr Wood, to adjourn to allow the witnesses to be present; and he agreed to the hearing proceeding at that time.
- .33 Mr Benbow presented the case against the claimant. S.M. and three of her witnesses, who had previously given statements to Mr Benbow, were present; each gave oral testimony referring to the contents of their statements and were each asked questions by both Mr Wood and Mr McCarthy. During the course of the questioning of these witnesses it became apparent that Mr McCarthy had not seen the second report. This was given to him and he was given an opportunity for a short adjournment to read it and to make any representations with regard to it, but he declined to do so. It was further agreed by Mr McCarthy, during the course of the hearing, that the statements of the other persons who had given statements on behalf S.M., and who had not been asked to attend by Mr Benbow and give oral evidence, could be read out and should be accepted as having been entered into the process.
- .34 During the course of the evidence given by those persons who gave oral evidence considerable emphasis was placed by the claimant's union representative, in his questioning of them, on the date relied on by them and the circumstances in which it came to be changed.
The tribunal noted, from the notes of the hearing, that Mr Wood, although the change in date and the circumstances in which it came about would clearly be an issue which the disciplinary panel would have to carefully consider in determining whether the claimant had done as alleged and on the date now relied on, interjected in the course of the questioning of S.M. to say as follows, "Mr Wood then said that the sequence of events seemed to be that S.M. had given Mr Benbow the date as 16 January 2002. Mr Benbow had then approached the witnesses giving that as the date of the incident. The trade union then contacted Mr Benbow regarding the discrepancy in that date. Mr Benbow then rang each witness and asked them to check the date and further statements were then taken clarifying the date to have been in fact 23 January 2002 (tribunal's emphasis)." Mr Wood also commented "once this witness (i.e. S.M.) had given the date as 16 January, Mr Benbow had supplied that date to each of the other witnesses", to which Mr Benbow had indicated his agreement. Mr Benbow then indicated that the additional report file and exhibit file dealing with the error (tribunal's emphasis) in the date had been forwarded to the member. Whilst the said statements had been sent, in the opinion of the tribunal, the said second report had not in fact been sent, prior to the hearing.
At the conclusion of the hearing, Mr Benbow gave a summary of his investigation and pointed out that the claimant had provided witness statements which had been received late the night before the hearing and the claimant had not come forward to defend himself against the charges made. He contended, as he had in his said reports, that a mistake had been clearly made in relation to the date and the date was 23 January 2002 and all witnesses were credible.
- .35 Mr Wood did raise with Mr McCarthy that the statements were not dated, no addresses were supplied and some signatures were not legible. Mr McCarthy indicated that he would get the details; but when he was asked by Mr Wood, were these witnesses he wished to call and did he wish the hearing to be adjourned, he declined the offer and asked for the weight, seen as appropriate, to be given to the statements.
- .36 Mr McCarthy at the conclusion of the hearing, in his summary, concentrated, as he had in the course of the hearing and the questioning of the witnesses who gave oral evidence to the hearing, on the issue of the change of the date. He indicated his amazement that S.M. did not remember what she had done after her interview with the claimant and D.W. and that professional people do not check facts. He suggested there was a vendetta against the claimant and the event did not take place at all. He referred to the fact that all the witnesses had said they were at a function in the restaurant but he maintained there were no functions held in the restaurant. He contended that it was unacceptable that nine people could get the date wrong, pointed to inconsistencies in their statements and to a diary entry with only two entries and asked for the case to be thrown out.
- .37 Following the conclusion of the hearing of the oral evidence, after retiring for a short period and without seeking any further evidence, information or clarification, Mr Wood, on his return, announced that, after careful consideration, he had decided to uphold the disciplinary findings. The tribunal believes that this was a reference to the substantive charges, as referred to in Mr Benbow's second report, but which had not, as stated previously, been formally notified to the claimant in advance of the disciplinary hearing. It does not believe, not without some misgiving, that this was a direct reference to the conclusions as set out by Mr Benbow in his reports on the "Merits of the Complaint". After concluding that there had been a full investigation and thorough hearing he referred to the fact that there had been an unfortunate discrepancy (tribunal's emphasis) in the date, but reasons had been given which he accepted. He criticised the late receipt of the claimant's witness statements which were undated, with little detail and barely decipherable signatures and that an opportunity had been given to adjourn the hearing and test the evidence of the witnesses. He said the matter was one of gross misconduct and the claimant would be subsequently notified of the decision and the reasons for the decision and of his right to appeal. Mr McCarthy again suggested the witnesses had all got together and had corroborated over the date of 16 January 2002. The tribunal noted that Mr Wood responded, in terms very similar to that which had been expressed by Mr Benbow in his second report in relation to the merits of the complaint, namely that if they had wanted to do this they would have made sure they were clear on the date.
- .38 By letter dated 4 March 2003 Mr Wood informed the claimant that the allegations had been proved against him. He stated that the claimant would therefore be dismissed from the post of Investigating Officer with effect from 10 March 2003 and he advised the claimant of his right of appeal.
He noted that the hearing had taken place in the claimant's absence, with the agreement of his union representative who did attend the hearing.
He made clear that he was satisfied that he believed the incident had taken place and that he believed that the issue of the date had originally arisen due to an error on the part of S.M., which had been compounded by an error on the part of the investigator, Mr Benbow, who had accepted the date was correct and had asked all the witnesses if they recalled their night out with S.M. on 16 January 2002; it was only after the incident was raised by the claimant's trade union that checks were made and it was confirmed an error had been made and the date in fact was 23 January 2002. He made it clear he rejected the claimant's case, as put by his representative, that these events did not take place and that S.M.'s witnesses were lying and that on 23 January 2002 the claimant was at his home with the five witnesses who had given statements.
He then set out matters which had a bearing on his conclusion. In particular he referred to the following matters –
(i) The witnesses had given a compelling account of the incident and had denied they had any motive to lie and that one witness B.G. described himself as a friend of the claimant. The tribunal noted that, despite Mr Wood's reliance on this witness and his friendship with the claimant, at no time did the witness suggest he had seen the claimant or any incident, and remained somewhat unsure of the date.
(ii) It was difficult to establish a motive for nine witnesses to lie and referred to the claimant's friendship with witness (B.G.) and the fact that S.M. had not sought disciplinary action against the claimant and their corroboration of her account. He accepted there were minor inconsistencies in their statements, which was to be expected.
(iii) If nine witnesses, six of whom were police officers, had decided to fabricate an account of an evening which did not happen it would require them all to get together and agree a version of events. In his view it was inconceivable they would have picked a date when two of them were out of the jurisdiction on other police duties and it would have been entirely unnecessary for S.M. to involve others.
(iv) If S.M. had wanted to damage the investigation of the complaint against her she would have taken action against D.W. not the claimant.
(v) He placed no reliance on the statements produced by the claimant and in doing so he referred to the absence of the claimant at the hearing, his failure to attend the second investigatory interview and that he had provided statements late which were undated, scant in detail and with barely decipherable signatures in most cases – and in the context that the date of the hearing had been known for some time and any such evidence should have been tendered at least seven days before the hearing. There was no opportunity to test the witnesses' evidence and an opportunity to enable this to happen had been declined.
- .39 By letter dated 7 March 2003, from his union representative, Mr McCarthy, the claimant appealed the decision to dismiss him on the grounds of gross misconduct, again concentrating on the issues previously raised by him at the disciplinary hearing.
The letter also indicated the claimant's intention to produce witnesses, in the claimant's defence, who could not attend the previous hearing.
Mr Pollock, the Chief Executive, replied by letter dated 10 March 2003 indicating that he would hear the appeal and setting out the arrangements for same.
- .40 By letter dated 19 March 2003, the claimant's union representative sent signed, typed and dated statements from the claimant and four witnesses regarding the evening of 23 January 2002, together with a hospital appointment confirmation relating to one of the said witnesses, to confirm the claimant's and the witnesses' activity on the said date, and that they were not present at Kelly's Nightclub. These were the same persons who had provided statements to Mr Wood on the evening prior to the disciplinary hearing and referred to above. The new statements were more detailed than those previously given, but the thrust of the said statements was similar to what had previously been stated and put forward an 'alibi' defence for the claimant for 23 January 2002.
- .41 Prior to the appeal hearing, in correspondence to Mr Pollock, the claimant's union representative challenged the involvement of Mr Wood, who had taken the decision to dismiss the claimant and, in particular, his attendance at the appeal hearing and his right to ask questions in relation to the information presented by witnesses. He contended that this involvement in the appeal would be unfair. Mr Pollock rejected this challenge and contended, inter alia, that, as the claimant intended to call witnesses, in support of their additional statements submitted, Mr Wood, who had taken the decision to dismiss at the disciplinary hearing, should be permitted to hear the additional submissions and evidence and to have the opportunity to ask any questions in relation to such matters.
- .42 The appeal hearing took place on 29 April 2003 and 2 June 2003 and 3 June 2003 and was conducted by Mr Pollock. The claimant and his union representative were present, together with Mr Wood, on all days. Mr Benbow was also present, but only on 2 June 2003. At the outset Mr Pollock stated this was an appeal and the position was to examine if the decision at the disciplinary hearing was fair and should be upheld. He accepted, in evidence, that he did not consider the appeal as a complete re-hearing but only to satisfy himself that Mr Wood and his conduct of the hearing was sustainable.
- .43 On 29 April 2003, the claimant gave evidence, together with two of the witnesses who had given statements on his behalf. The claimant again denied that he had been in Kelly's on 23 January 2002 and that any incident had taken place; and further stated that on 23 January 2002 he had been at home with friends celebrating the good news that one of their group of friends had been given the all clear after a cancer scare. Both Mr Pollock and Mr Wood asked questions. Two of the group of friends, who gave evidence, confirmed that on 23 January 2002 they had been with the claimant at his home celebrating the said good news. D.W. also gave evidence confirming what he had previously stated about his presence at Kelly's Nightclub on 16 January 2002, and that S.M. had subsequently, in a telephone call, made an allegation about the claimant's conduct at Kelly's Nightclub on the evening of the said interview.
- .44 At the appeal hearing on 2 June 2003 S.M., and a number of witnesses on her behalf whom Mr Pollock had specifically asked to attend, gave oral evidence. This did not include witness B.G., although Mr Wood had specifically relied on him in his conclusion following the disciplinary hearing. Again, both Mr Wood and Mr Pollock and the claimant's trade union representative asked questions of these witnesses.
In the course of her evidence S.M. made reference to the fact that, when the issue of the date had arisen, one of her witnesses (G.D.) had indicated he had paid by Visa for the meal at Kelly's Nightclub and that he said he would check his receipts and get back to her but did not. This witness (G.D.) also gave evidence, but does not appear to have been asked about any such receipts nor does it appear that Mr Pollock followed up on this matter at any time. Another witness, K.F., indicated in the course of her evidence that she was in a relationship with D.G.
- .45 Mr Benbow, the Investigating Officer, was then questioned about the sequence of events in relation to the date and indicated, inter alia, that the initial confusion could be attributed to himself and how he had, when taking statements of the claimant's witnesses, given the date of 16 January 2002. He confirmed asking S.M. and her witnesses to subsequently clarify the date. He then expressed the opinion that the statements seemed genuine and that it was possible that in statements errors can occur.
- .46 On 2 June 2003, the claimant's witness P.M. gave evidence and explained that on 23 January 2003 she had an appointment at the Breast Clinic where she got the 'all clear' and for which appointment the relevant appointment card was produced and she further confirmed that she and some other friends had met at the claimant's home on that evening.
- .47 In conclusion of the above evidence both Mr Donaghy, the claimant's trade union representative, but also Mr Wood, were given an opportunity to sum up.
Mr Donaghy in essence, repeated the claimant's denial and placed considerable stress on the fact that the original date given by S.M. had been on 16 January 2002, but then it had changed to 23 January 2002; and whilst the claimant had been present in Kelly's Nightclub on the former date he had been at home with friends on the latter date. He raised the issue of whether the allegation had been invented, whether some form of collusion had taken place and the degree of friendship between some of the witnesses; this was in a context where S.M. was the subject of investigation herself. Mr Wood stated that he had been left in no doubt that the incident had happened and that the decision to dismiss was correct. He emphasised, inter alia, there were nine witnesses of the event, not all of whom were police officers and were not all close friends; whereas all the claimant's were. He contended that some of the witnesses knew the claimant and it was not a case of mistaken identity, and it was not possible for such a number of persons to lie because, if they had, they would have ensured the date was correct. He further rejected that any had any motive to lie or the relevance of the investigation of the complaint against S.M. He further went on to state that as all had been at a social event at Kelly's Nightclub it was not possible to check the date. He referred to the fact of the failure of the claimant to attend a subsequent investigatory interview, that he had not attended the disciplinary hearing and the witness statements produced for that hearing were scant in detail, unsigned, difficult to make out and, despite the offer of an adjournment which had been refused, none of the witnesses had been called to the disciplinary hearing.
- .48 Mr Pollock indicated he would reserve his decision, after he had had an opportunity to review all the evidence both written and oral.
- .49 By letter dated 6 June 2003, Mr Pollock stated he had considered the matter in depth and that he had reached a decision that the outcome of the disciplinary hearing, as indicated in the letter of 4 March 2003, should stand. He gave no reasons in his letter for the reasons of his dismissal. In evidence to the tribunal he confirmed that the reasons for his decision were the same as set out in the letter of Mr Wood dated 4 March 2003. Despite being given ample opportunity both during the course of examination and cross-examination and in answer to questions by the tribunal, Mr Pollock was not prepared to give any other reasons in relation to his decision, other than that set out above.
- .50 The respondent's relevant disciplinary procedures in providing the right to appeal set out in paragraph 7.5 as follows:-
"The appeal decision will be conveyed in writing to the employee concerned within five working days of the date of the hearing".
Paragraph 31 of the Labour Relations Agency Code of Practice relating to disciplinary and grievance procedure provides that –
"The workers should be informed of the result of the appeal and the reasons for the decision as soon as possible and this should be confirmed in writing…".
- The claimant claims that he was unfairly dismissed under Article 130(1) of the Employment Rights (Northern Ireland) Order 1996 it is provided:-
(i) 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 principle reason) for the dismissal and
(b) that it is either a reason falling with 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.
(ii)
(iii)
(iv) A reason falls within this paragraph if it –
….
(d) relates to the conduct of the employee.
- .1 The tribunal is satisfied the respondent has shown the reason for the dismissal by it was the said gross misconduct of the claimant, which clearly relates to his conduct; and, in particular, the claimant had committed the four acts set out in paragraph 2.18 herein, but with the substitution of the date of 23 January 2002 for the date of 16 January 2002. There was no dispute by the claimant's representative that this was the reason for the dismissal or that such acts, if committed by the claimant, were acts of gross misconduct which related to his conduct as an employee and were therefore potentially fair reasons for his dismissal, pursuant to Article 130(1) of the 1996 Order. In addition, there was no dispute by the claimant's representative that, if such acts were committed, dismissal would be an appropriate sanction.
- .2 However, it was necessary for the tribunal to have regard to the provisions of Article 130(4) of the 1996 Order, which states:-
"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,
(b) shall be determined in accordance with equity and the substantial merits of the case."
Indeed, it was the consideration of these issues that were the main focus of the hearing by the parties before the tribunal and, in particular, in relation to the reasonableness of the investigation and disciplinary hearing and appeal carried out by the respondent.
- .3 In considering these issues, the tribunal had particular regard to the guidelines set out in the case of British Home Stores Ltd -v- Burchell (1978) IRLR 379, where it was stated:-
"In a case where an employee is dismissed because the employer suspects or believes that he or she has committed an act of misconduct, in determining whether that dismissal is unfair, the Employment Tribunal has to decide whether the employer who discharged the employee on the ground of the misconduct in question entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. This involves three elements. First, there must be established by the employer of 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 upon which to sustain that belief and that the employer at the stage at which he formed that belief on those grounds must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case."
- .4 The tribunal at all times was conscious that it must not substitute its own view, but rather consider the reasonableness of the actions of the respondent and whether, in particular, the actions of the employer fell within the band of reasonable responses which an employer might have adopted. The tribunal also noted that the said band of reasonable responses test applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason (see Iceland Frozen Foods Ltd -v- Jones (1982) IRLR 439 and Sainsburys Supermarkets Ltd -v- Hitt (2003) IRLR 23).
- The tribunal had a number of serious concerns about the investigation carried out by the respondent into the incidents, the subject matter of the said gross misconduct alleged against the claimant.
- .1 At all material times the claimant accepted that he was present at Kelly's Nightclub on 16 January 2002, but denied that any incident took place at the said premises involving S.M. and/or any of her witnesses. Clearly, if this had remained the situation at the time of the disciplinary hearing, it would still have been necessary to determine what had occurred between the conflicting versions of the parties; but, at least, there would have been no doubt that the claimant was on the premises on the night in question. The tribunal noted that, although the claimant maintained that no such incident had taken place on the night of 16 January 2002, and considered one of the witnesses of S.M. had a grudge against him, no steps were taken at any time to further investigate this aspect. In the tribunal's view, this failure to investigate this issue further by either Mr Benbow or subsequently Mr Wood or Mr Pollock was illustrative of their failure to test in any way the credibility of S.M. and/or her witnesses – which was always going to be necessary in order to assist in the resolution of the clear conflicts of fact between the parties. This failure, in the opinion of the tribunal, took on an even greater importance whenever the date of the incident was changed and how this could have occurred and placed even greater emphasis on this issue of credibility. Again, neither Mr Benbow nor Mr Wood nor subsequently Mr Pollock took any steps to follow up the statement of M.B., given on 26 September 2002, in any way and, in particular, with S.M. – which, if the contents were true, raised issues about the credibility of S.M. in particular with regard to the conclusions reached by Mr Wood and the absence of any motive on her part to lie.
- .2 At all times prior to the issue arising from the change of date, S.M. had linked the date of the incident to the evening of the interview she had had with D.W. and the claimant at Coleraine Police Station and her attendance at a function at the nightclub on that evening. Indeed, before making her complaint, she had specifically sought to ascertain the date of the interview. Following the notification by the claimant's representative that two of the claimant's witnesses had not been in the jurisdiction on 16 January 2002, Mr Benbow properly, in those circumstances, sought to investigate the matter further and to check the date with S.M. and her witnesses. The fact that the change of date was not ascertained by Mr Benbow in his investigation, but rather by the claimant, is illustrative of the weakness of the initial investigation itself. Mr Benbow, an experienced police officer, and at a time when he did not know whether the claimant would accept that he was present at the nightclub on 16 January 2002, seems, as he subsequently admitted, to have accepted the date given by S.M. and supplied that date to her witnesses. The tribunal would have expected Mr Benbow in such an investigation to investigate all the matters relevant to the complaint, including the date itself. S.M., despite her earlier clear linkage to the date of the interview, whenever the issue of change of date arose, merely checked with her sister on the telephone about the latter's hours of duty, and then changed, without any apparent difficulty, the date to 23 January 2002. All her other witnesses agreed, again without any apparent difficulty, that they had been mistaken by the earlier date. Mr Benbow, who had already concluded, as set out in his first report in the Merits section, that S.M. and her witnesses were credible, then, despite the turn of events, as set out above, simply accepted at face value and without any further investigation at all the above change of date. For example, he never sought to take any steps to confirm S.M.'s sister's hours of duty on the relevant dates. Indeed, before he had even sought to interview the claimant about the change and/or to comment on the change of date and the witnesses' revised statements he had concluded that the change of date was a misunderstanding and so informed the claimant. In the tribunal's view, Mr Benbow, in failing to carry out any such further investigation, had to have been strongly influenced by the fact that he had already concluded, in his first report, that the said witnesses were credible. He failed to appreciate, in the tribunal's view, that the change of date and how it came about raised clear issues as to the credibility of S.M. and her witnesses and therefore of the incident itself, as described by them and required to be further investigated. This he failed to do. This failure became of even greater importance and significance when it became clear, at the time of the disciplinary hearing, that the claimant did not accept that he had been at the nightclub on 23 January 2002. Mr Wood also took no steps to investigate the above matters further, before reaching his conclusion that the claimant had been guilty of the said gross misconduct on 23 January 2002. This was despite the fact that the claimant's trade union representative, at the disciplinary hearing, concentrated on this issue of the credibility of S.M. and her witnesses in the context of the change of date, her earlier reliance on the linkage with the date of the interview, their motives and how so many people had got the date wrong. This issue, in the opinion of the tribunal, went to the heart of determining whether the incidents had occurred, as described. But yet, in these unusual circumstances of such a change of date neither Mr Benbow nor Mr Wood sought to investigate the change of date further before reaching their conclusions. The tribunal is of the opinion that this could and should have been done, as part of a reasonable investigation, in order for the respondent to have the necessary belief that the claimant had carried out the alleged acts at the said nightclub on 23 January 2002. Mr Benbow, as set out above, had taken the view that the change of date arose out of a misunderstanding. Indeed, in the Merits section of the second report, he concludes that there has clearly been a mistake. Mr Wood, in the course of the disciplinary hearing, referred to Mr Benbow clarifying the date to have been in fact 23 January 2002. This was before he had concluded the disciplinary hearing; but yet appeared to be adopting the same view, even at that stage, as Mr Benbow. Again, following the conclusion of the disciplinary hearing, Mr Wood referred to the change of date as an unfortunate discrepancy, but for reasons which he had accepted. Whilst the tribunal fully accepts that such a conclusion could have been made, it is of the opinion that this could only have been made provided there had been a proper investigation into the change of date and the circumstances relating to the said change. In the tribunal's view, the change of date was not a matter for clarification but rather for investigation.
- .3 S.M. and her witnesses had been at a function at the restaurant in the nightclub prior to the incident as described by them. No enquiries were ever made to ascertain the nature of the function or whether any relevant records of such a function existed and/or any details of any persons who had attended the said function or in whose name it had been booked. However, there was no evidence before the tribunal that any attempt was ever made by either Mr Benbow, Mr Wood or Mr Pollock to follow this matter up and, in particular, to see what records were held by Kelly's Nightclub. Mr Pollock, at the appeal hearing, was given evidence that one of S.M.'s witnesses (G.D.) had paid for the meal at the nightclub using his credit card. Again, no attempt was made to investigate what credit card records could be obtained. Mr Wood's conclusion that the claimant had committed the incidents on the changed date was founded to a large extent on the fact that he was satisfied as to the credibility of S.M. and her witnesses and his rejection of the claimant's 'alibi' defence, set out in the statements of the claimant and his witnesses about where he was on 23 January 2002. However, the tribunal was of the opinion that in failing to carry out the further investigations, as set out above, which it considers would have been reasonable, he could not have had the necessary belief that the claimant had committed the acts of gross misconduct. If, for example, a simple check of the said records of the nightclub or the credit card records had revealed that the function was in fact on 16 January 2002, as originally alleged by S.M, or 23 January 2002 this would have been of considerable relevance to the above issue of credibility.
- The tribunal also had serious concerns about procedural aspects relating to the conduct of the disciplinary hearing and the subsequent appeal hearing. Mr Benbow was asked by Mr Wood to investigate the matter. Mr Benbow is an experienced police officer who had investigated the conduct of many police officers; but he had no experience of investigating an allegation of gross misconduct against an employee. In fairness to him, he was not given any instructions or guidance, nor was his proper role in the process ever explained to him. As a result, both in his first and second reports, not only did he set out the facts, as found by him in the course of his investigation, but he also, in the section headed "Merits of the Complaint" analysed, commented upon and came to the conclusions on the facts so found by him. This was not his role, but rather the role of Mr Wood. Whilst Mr Wood maintained in evidence that he had reached his own conclusions, independent of Mr Benbow, the tribunal remained concerned that the conclusions of Mr Benbow strongly influenced the conclusions of Mr Wood. Like Mr Benbow, he did not feel it necessary to carry out any further investigation as seen above, and it is also clear, in the view of the tribunal, that his conclusion in accepting the credibility of S.M. and her witnesses was in very similar terms to that previously expressed by Mr Benbow in his reports. Indeed, at the appeal, Mr Benbow was called not only to clarify the sequence of events relating to his role in the change of date and what he had said to each witness when interviewing them about the original date, he was also allowed, by Mr Pollock, to express his opinion on the genuineness of the statements of S.M. and her witnesses. Thus, the tribunal had concern that throughout the disciplinary process Mr Benbow, whose role was to investigate and subsequently to present the evidence, was allowed to take on a much wider role relating to the determination of the matter, which were properly that of Mr Wood and/or Mr Pollock.
- .1 The tribunal is satisfied that the claimant should have been sent by the respondent, prior to the disciplinary hearing, a formal letter setting out the amended charges, in accordance with the respondent's relevant procedures. However, the tribunal is satisfied that the claimant and his representatives knew, at the date of the disciplinary hearing, that the charges related to 23 January 2002 and not 16 January 2002. They had received the additional statements of S.M. and her witnesses, prior to the hearing and it clearly was in light of that that the claimant had faxed to the respondent on 26 February 2002 his new statement and those of his witnesses relating to where he had been on the evening of 23 January 2002 and which set out his 'alibi' defence. The tribunal would have been more critical of the above, but for the fact that at the disciplinary hearing the claimant was represented by his trade union representative. He was given the opportunity to adjourn the hearing, but declined, and expressly stated the claimant wished the matter to proceed in his absence. Whilst it may be argued that this was not an appropriate course to take by the claimant's trade union representative, the tribunal does not consider that Mr Wood can be criticised for proceeding with the hearing in light of what had been stated by the claimant's representative and the refusal by him of any adjournment. The tribunal is satisfied this would have been given, if sought. Equally, there is no doubt that Mr Benbow's second report should have been made available to the claimant and his representative before the disciplinary hearing. This failure was identified at an early stage of the hearing, but again the claimant's representative declined the opportunity to adjourn. In such circumstances, the tribunal does not consider Mr Wood can be criticised for proceeding with the hearing. The statements sent by fax immediately prior to the disciplinary hearing made it clear that not only was the claimant maintaining his earlier denial of the incident itself but also that he had not been present at the nightclub on 23 January 2002. Mr Benbow had sought to interview him but he had not replied to any relevant correspondence, which the tribunal is satisfied he received; nor did he indicate at any time that he had been advised not to do so or to attend the disciplinary hearing by his trade union representative, as he suggested in evidence. Indeed, the trade union representative referred to the stress of the proceedings as the reason for his non-attendance. Even if such advice had been given by his trade union representative, the tribunal is not satisfied Mr Wood could have been criticised for proceeding (see Harris -v- Courage (Eastern) Ltd (1982) ICR 509). The claimant was represented by his trade union representative, who was given every opportunity to adjourn and/or take instructions, but declined to do so. On reflection and/or with hindsight, this may not have been appropriate action to have taken; but the tribunal considers that Mr Wood was entitled to proceed in the light of what he was told by the claimant's representative. It is further to be noted that neither of the trade union representatives, who had carriage of this matter on behalf of the claimant, were called to give evidence to the tribunal.
- .2 Despite the absence of the claimant at the hearing, Mr Wood was now formally on notice that the claimant was contending that he was not at the nightclub on 23 January 2002, but rather at home and had witnesses to support his 'alibi'. As set out above, the tribunal considered that the receipt of the said statements made it particularly necessary for Mr Wood to further investigate the change of date by S.M. and her witnesses. However, it does not believe it can criticise Mr Wood for continuing with the hearing and not taking steps, at that stage, to further investigate the said statements so received from the claimant. The claimant's trade union representative declined the opportunity given by Mr Wood to allow the witnesses to be present and agreed to the hearing proceeding and merely asked for the weight, as appropriate, to be given to the statements. However, where the tribunal believes that Mr Wood can be criticised is that he should not have given his decision at the conclusion of the disciplinary hearing; but should have awaited the investigation referred to above. In light of that investigation, he would then have had to consider whether the hearing had to be resumed and/or any further investigations required to be carried out in light of the evidence already presented to him at the disciplinary hearing, including the statements received from the claimant, and the weight to be attached to them, in light of any changed circumstances.
- .3 The appeal hearing, in the opinion of the tribunal, was very much part of the whole process which led to the dismissal of the claimant. Mr Pollock was very clear that in conducting the appeal he was not conducting a re-hearing, and his role was to satisfy himself that Mr Wood and his conduct of the hearing was sustainable. The tribunal considers that, having so decided, Mr Pollock therefore gave himself no opportunity to properly cure the defects in the disciplinary hearing, which have been referred to above. In particular, Mr Pollock also failed to carry out the further investigations referred to above and which for similar reasons, as set out before, the tribunal considered were essential in order for the respondent to have the necessary belief that the claimant had committed the said gross misconduct. The tribunal noted that Mr Pollock, took upon himself which of the witnesses he wanted to attend at the appeal hearing. Despite the fact that Mr Wood in his conclusion had placed considerable reliance on the evidence of B.G. he was not one of the witnesses asked to attend the appeal and to be the subject of any questions by the claimant's trade union representative. Further, the tribunal does not consider that Mr Pollock, in conducting the appeal, even on the basis set out above, could properly ignore what took place at the appeal and, in particular, the different approach, at the appeal, of the claimant and his representative. Unlike the hearing before Mr Wood, the claimant and his 'alibi witnesses' were present and gave evidence at the appeal. Whereas Mr Wood felt able to discount entirely the claimant's faxed statements, the tribunal does not consider that Mr Pollock was entitled to do so and was therefore required to analyse and consider what was said by the claimant and his 'alibi witnesses'. It was therefore not the same case that had been before Mr Wood and therefore required him to set out, in these changed circumstances, his reasons for deciding that the appeal should be rejected and the claimant should be dismissed for the said gross misconduct. Under the respondent's procedures Mr Pollock was required to give the claimant his reasons. He failed to do so. The tribunal was left in the position that it did not know why Mr Pollock rejected the alibi evidence presented to him. He could not reject it, as Mr Wood had, because the claimant and/or his witnesses were not present or the statements had merely been faxed the previous evening and were scant in detail. Both the claimant and his witnesses were present and gave evidence and were questioned. In the tribunal's view, it was not possible, in such circumstances, to merely state the outcome as set out in Mr Wood's letter of 4 March 2003 should stand. The tribunal is satisfied that this failure was not a mere technical breach of the procedures but struck at the root of this whole matter as to why the respondent considered the claimant had committed the acts of gross misconduct on 23 January 2002. Whilst the claimant can be criticised, as set out above, for not attending the disciplinary hearing with his witnesses and for his representative allowing it to proceed in his absence with his apparent agreement, he had given clear grounds of appeal and, in essence, sought to overcome the previous criticisms; but yet he was told the previous decision stood and was given no reason how that was so and, in particular, in light of the 'new' evidence given on appeal.
- .4 Further, the tribunal considers that it was not appropriate to allow Mr Wood to attend the appeal hearing and to play such a full part in it. In essence, even though this was an appeal from his decision, Mr Wood, in the opinion of the tribunal, was allowed to act like a presenting officer, asking questions and making comments on the evidence given and was given the opportunity to attempt to stand over his previous decision. This was not a case where Mr Pollock had asked Mr Wood to attend in order to clarify, for example, something that had been said or done at the disciplinary hearing and which was in dispute on the appeal. Mr Benbow, although only the investigator, was also given a further opportunity to give comments on his view of the genuineness of the statements. In allowing this to occur, and in particular in relation to the role played on the appeal by Mr Wood, Mr Pollock failed to ensure, insofar as possible, sufficient disconnection between Mr Wood, the person conducting the initial hearing, and himself, the person conducting the appeal (see further Rowe -v- Radio Rentals Ltd (1982) IRLR 172). In so doing, the claimant was not given a proper appeal and Mr Pollock thereby acted unfairly.
- .1 The tribunal is satisfied, for the reasons and in the circumstances set out above in paragraphs 4 and 5 herein, that the actions of the respondent did not fall within the band of reasonable responses which an employer might have adopted and the respondent therefore acted unreasonably in treating the said misconduct as a sufficient reason for the said dismissal; and the said dismissal was therefore unfair.
- .1 The decision of the tribunal is therefore that the claimant was unfairly dismissed by the respondent.
- .2 As agreed, the claimant will be re-listed for a hearing to consider the remedy to which the claimant is entitled on foot of the said decision.
Chairman:
Date and place of hearing: 24 November 2004, 25 November 2004, 26 November 2004, 3 December 2004, 17 January 2005, 20 January 2005,
2 February 2005, 3 February 2005
Date decision recorded in register and issued to parties:
