THE INDUSTRIAL TRIBUNALS

CASE REF:	1827/10

CLAIMANT:			Mark Lawrence Price 

RESPONDENT:		NSL Ltd

DECISION 
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed.

Constitution of Tribunal:
Chairman:		Mr P Buggy
Members:		Mr J Boyd
			Mr M Grant

Appearances:
The claimant was self-represented.

The respondent was represented by Ms J Crook, Solicitor.

REASONS

1.	The claimant was employed by the respondent (“the Employer”) from November 2006 until 1 April 2010.  He was employed as a traffic warden, based at Newtownards.  He was dismissed from his employment, by the Employer, because of alleged misconduct.

2.	In these proceedings, the claimant complains of unfair dismissal.

3.	The alleged misconduct consisted of the following.  It was alleged that, in relation to his activities while on duty on five separate dates (29 January, 1 February, 
2 February, 1 March and 2 March 2010), the claimant falsified company records.  The relevant company records were a “Sidem” recording device and a company pocket-book.  The alleged falsifications consisted of entries which showed the claimant to be at various locations in Ards, on his patrols, at various times, whereas (according to the employer), at those times, he was actually elsewhere.  In essence the employer’s position was that, on the various occasions which were the subject-matter of the allegations, the claimant was staying inside, during inclement weather, at times when (according to the Sidem and pocket-book records which he was making) he was pretending to be out on patrol.  

4.	On 4 March 2010, the claimant was suspended, pending a disciplinary investigation in respect of the relevant allegations.  On the same date, the claimant attended an investigatory interview, which was conducted by Mr Colin Goddard.  During the course of the disciplinary investigation, he was interviewed again on 16 March 2010.  On both occasions, he denied any misconduct.  He was required to attend a disciplinary hearing on 22 March 2010, but did not attend.  (The claimant had been on two weeks’ sick leave, starting on 19 March 2010).   The hearing was rescheduled for 29 March 2010.

5.	The claimant did attend the disciplinary hearing on 29 March 2010.  The hearing was conducted by Mr Robert Smyth, who was the decision-maker at the first stage of the disciplinary process.  During the 29 March 2010 hearing, the claimant accepted that the sightings recorded by Mr Goddard were correct, but asserted that he had had a practice of leaving the base by the back door.

6.	On 31 March 2010, Mr Smyth wrote to the claimant telling him that he had decided that the claimant should be dismissed for gross misconduct.  The claimant lodged a written internal appeal against dismissal.  The grounds of appeal, as set out in the appeal letter, were that the sanction to dismiss was harsh, that others had been treated differently, and that the decision to dismiss was in breach of principles of equality and non-discrimination.

7.	The appeal was conducted by Mr Jason McFadden, the employer’s Contract Manager.  The appeal hearing took placed on 4 May 2010.  During the appeal hearing, the claimant again asserted that he had been leaving the base by the back door.

8.	The outcome of the appeal process was that Mr McFadden concluded that the disciplinary process had been fair, that there was adequate evidence to support the proposition that the claimant was guilty of the relevant misconduct, and that dismissal was an appropriate sanction in the circumstances.

9.	The Employer’s traffic wardens in Newtownards operate from a base (“the base” which is located at Regent Street, Newtownards).  Although the front entrance is at Regent Street, the back door (a fire door) looks on to Mill Street.

10.	According to his terms and conditions of employment, the claimant was obliged to keep a record of observations made during the course of his patrols.  Those records were to be recorded in a pocket book and in an electronic device, known as a “Sidem” (referred to below as “Sidem”). 

11.	The gist of the allegations against the claimant was that, at various times during the relevant periods, his Sidem and pocket-book records were false and inaccurate.  That assertion was made because, it was claimed, the entries were inconsistent with the observations which Mr Goddard was making (in relation to the claimant’s entrances to, and exits from, the base).

12.	In respect of each relevant period, the claimant’s pocket-book records and Sidem records were consistent with one another.

13.	It was agreed, on both sides of this case, that it was possible for the claimant to make entries in his pocket-book at times other than the times, at which he was purporting to have made those records.  It was also agreed, on both sides of this case, that the entries which the claimant purported to make in his Sidem must have been made at the times at which they purported to be made (because the Sidem will always accurately record the time when Sidem records are being made).  

14.	The difference between the parties, in respect of the Sidem records, was on the question of whether the claimant was where he purported to be at the time when he was purporting to record sightings of vehicles at various locations.   So the assertion, on the part of Management within the Employer, was that the claimant was recording observations on the Sidem, in respect of the relevant periods, at the times when he purported to make those records, but that, when he was making them, he was not at the locations mentioned in those records.

15.	The relevant periods, in the context of this case, are as follows:

(1)	From 09:41 until 12:45 on 29 January 2010.

(2)	From 12:40 until 17:30 on 1 February 2010.

(3)	From 12:59 until 18:35 on 2 February 2010.

(4)	From 12:23 until 16:00 on 1 March 2010.  

(5)	From 12:12 until 17:00 on 2 March 2010.

16.	Throughout the relevant periods, Mr Goddard was secretly observing the front entrance to the base.  From that vantage point, Mr Goddard could not see the back exit.

17.	Details of the Goddard sightings, and of relevant Sidem entries, are as follows:

(1)	Mr Goddard’s sightings of the claimant on 29 January 2010 can be summarised as follows.  At 09:41, Mr Goddard saw the claimant return to the base in uniform.  He continued to watch the front door of the base until 12:45, but never saw the claimant come out of the base again.

(2)	As already noted above, Mr Goddard recorded the claimant as entering the base at 09:41, on 29 January 2010.  However, according to his Sidem record, he was in Greenwell Street on that date at 09:43, and he was in Movilla Street, on that date at 09:46.

(3)	Mr Goddard’s observations of the claimant in respect of 1 February 2010, can be summarised as follows.   At 12:40, he saw the claimant return to the base in uniform.   At 13:28, he saw the claimant leave the base.  At 13:40, he saw the claimant return to the base.  At 16:34, he saw the claimant leaving the base.  At 17:30, his observations were terminated.  At no time, other than the times specified, did Mr Goddard see the claimant, at any time from 12:40 to 17:30, leaving the base.

(4)	On 1 February 2010, Mr Goddard recorded the claimant as returning to the base at 13:40.   However, according to the claimant’s Sidem record for that day, he was at Conway Square at 13:48.

(5)	Mr Goddard’s observations in relation to 2 February 2010 can be summarised as follows.  At 12:59, he saw the claimant return to the base.  At 13:45, he saw the claimant leave the base.  At 16:16, he saw the claimant return to the base.  At 18:35, he saw the claimant leave the base.  Apart from the observations already specified, Mr Goddard did not see the claimant leaving the base at any time.

(6)	According to Mr Goddard’s observations for 2 February 2010, the claimant was entering the base at 12:59, but the Sidem record says that he was at Greenwell Street at 13:02.

(7)	Mr Goddard’s observations in respect of 1 March 2010 can be summarised as follows.  At 12:23, he saw the claimant return to the base.  At 13:45, he saw the claimant leave the base.  At 13:48, he saw the claimant return to the base.  At 14:46, he saw the claimant leave the base.  At 16:00, he abandoned his observations.  Apart from the sightings already specified, 
Mr Goddard did not see the claimant leave the base at any point during the 
1 March 2010.

(8)	So, on 1 March, Mr Goddard observed the claimant leaving the base at 14:46.  The Sidem record says that he was at Frances Street at 14:42 and at Ann Street at 14:52.

(9)	Mr Goddard’s observations in respect of 2 March 2010 can be summarised as follows.  His observations lasted from 12:12 until 17:00.  At 12:12, he saw the claimant return to base.  At 12:30, he saw the claimant leave the base.  At 14:43,  he saw the claimant return to the base.  At 16:00, he observed the claimant at the base window.  At 16:25, he again observed the claimant at the base window.  At 16:32, he observed the claimant leaving the base.  Apart from the observations already mentioned, Mr Goddard did not see the claimant leaving the base during his period of observations.

(10)	Mr Goddard’s records for 2 March 2010 show the claimant returning to the base at 14:43.   However, the claimant had recorded in the Sidem that he was at High Street at 14:38 and at Lower Mary Street at 14:54.

(11)	Later that day, Mr Goddard recorded the claimant as having been seen in the base (through the window) at 16:00 and 16:25.  However, the claimant had recorded in the Sidem that he was at South Street at 15:57, at High Street at 16:04 and at Lower Mary Street at 16:13.

18.	The unfair dismissals legislation is to be found in Part XI of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).

19.	Article 130(1) of that Order provides that a dismissal is to be regarded as being unfair unless the employer shows the main reason for the dismissal, and shows that that reason is a potentially fair reason for dismissal.  In this case, the employer has met the requirements of Article 130(1).  The claimant accepts that he was dismissed because the employer genuinely believed that he was guilty of the alleged misconduct.  A dismissal for misconduct is a potentially fair reason for dismissal.

20.	Because the requirements of Article 130(1) have been met in the context of this dismissal, our attention must shift to the provisions of Article 130(4), which is in the following terms:

	“Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – 

	(a)	depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and 

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

21.	In considering the Article 130(4) question, as to whether the dismissal is fair or unfair, we must consider the reasonableness of the employer’s conduct, not simply whether we (the members of this tribunal) ourselves consider the dismissal to be fair or unfair.  Furthermore, in judging the reasonableness of the employer’s conduct, we must not substitute our own decision (as to what would have been the right course to adopt) for that of the Employer.  Instead, our function, as an industrial jury, is to determine whether, in the particular circumstances of this case, the decision to dismiss fell within the “band of reasonable responses” which a reasonable employer might have adopted.  If the dismissal falls within that band, the dismissal is fair; and if the dismissal falls outside that band, it is unfair.  

22.	The claimant accepts that dismissal for the alleged offences was not a disproportionate sanction.  Accordingly, in deciding whether or not dismissal in this instance was inside or outside the range of reasonable responses, we must focus on three matters.  First, were there any procedural shortcomings in the context of the disciplinary process which culminated in the claimant’s dismissal?  Secondly, at the time of dismissal, was the Employer’s suspicion (its suspicion that the claimant was guilty of the alleged misconduct) a reasonable suspicion?  (It will only be a reasonable suspicion, if, at the time of dismissal, the Employer had reasonable grounds upon which to sustain a belief that the claimant was guilty of the alleged misconduct).  Thirdly, we must consider whether or not the Employer carried out as much investigation into the matter as was reasonable in all the circumstances of the case.

23.	We can deal with that third matter briefly.  The Employer did carry out an exhaustive investigation which, in our view, was entirely reasonable in its extent, having regard to the circumstances of the case.  The relevant allegations were based on sightings of the claimant, by Mr Colin Goddard.  Details of those sightings were brought to the attention of the claimant, and his observations in relation to the implications of those sightings were carefully considered.  (During the course of the disciplinary hearings, the claimant accepted that, when Mr Goddard’s records showed that the claimant had returned to base, or left that base, at a particular time, on a particular date, those records accurately recorded what they purported to record).  The claimant’s main line of defence was to argue that, although he had returned to base at the times at which he was sighted doing so by Mr Goddard, he had left the base, through a rear entrance, shortly thereafter, on each relevant occasion.

24.	This conveniently brings us to the second question which we have identified above, which is whether, at the time of dismissal, the employer had reasonable grounds upon which to sustain its belief in the claimant’s guilt (in respect of the relevant allegations).  In our view, the employer did indeed have reasonable grounds to sustain that belief.  We have arrived at the conclusion against the following background and for the following reasons.  First, the claimant never provided the Employer with any convincing explanations for his decision to enter by the front door on each occasion, but leave by a back fire door on each occasion.  Secondly, if the claimant exited the premises by the back entrance, he would have begun or resumed his patrols in Mill Street.  However, on several relevant occasions, the claimant did not record (either in his pocket-book or the Sidem) passing through Mill Street.  Thirdly, during each relevant period (the periods when, according to the claimant, he was out on patrol, and according to Management he was within the base), the claimant never issued any parking tickets.  Fourthly, on some of the relevant occasions, the claimant records himself (on his Sidem) as being in Newtownards streets which are quite distant from the base, at times very close to the times at which he was seen by Mr Goddard to be entering or leaving the base.  (For example, on 2 February 2010, Mr Goddard observed the claimant returning to base at 12:59, but the Sidem record completed by the claimant for that date purports to show that he was in Old Cross Street East at 12:54 and at Greenwell Street at 13:02 on that day; both streets are a considerable distance from the base, which is located in the Regent Street/Mill Street area).

25.	We now turn to the first of the issues listed at paragraph 22 above, which is whether or not there were procedural shortcomings in the context of this dismissal.  There were indeed such shortcomings.

26.	In considering the implications of those shortcomings for the fairness (in the Article 130(4) sense) of this dismissal, we must have regard to the effect of Article 130A(2) of the 1996 Order.

27.	However, before doing so, we note that it is not contended that this is an automatically unfair dismissal, in the sense in which that term is used in the context of Article 130A(1) of the 1996 Order.   The effect of paragraph (1) of Article 130A is that an employee is to be regarded as being automatically unfairly dismissed if the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (“dismissal and disciplinary procedures”) applies in relation to the dismissal, and the procedure has not been completed, and that non-completion is wholly or mainly attributable to failure by the employer to comply with its requirements.  As the claimant rightly accepted, those statutory procedures have indeed been complied with, in the circumstances of this case.

28.	Paragraph (2) of Article 130A, so far as material, provides as follows:

	“(2) … [Failure] by an employer to follow a procedure in relation to the dismissal of an employee cannot be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s actions unreasonable if he shows that he would have decided to dismiss the employee if he had followed that procedure”.

29.	The effect of Article 130A(2), as construed in case law, is that a procedural shortcoming, in relation to the dismissal of an employee, is not to be regarded as rendering the dismissal unreasonable, in the sense in which reasonableness is used in the context of Article 130(4), if the relevant industrial tribunal is satisfied that it is more likely than not that the employer would have reasonably decided to dismiss the employee, in the absence of the relevant procedural shortcoming.

30.	During the course of the disciplinary process, the Employer had made available to the claimant various records of sightings which had been made of him by Mr Goddard.  However, during the course of that process, the Employer did not make available to the claimant certain records of other sightings, which involved surveillance of another traffic warden, alongside the claimant.  Those withheld records were made available to the claimant during the course of these proceedings, as part of the discovery process.  In our view, the earlier withholding of those records had no significant effect on the claimant’s ability to defend himself in the context of the disciplinary proceedings.  Therefore, we reject the proposition that the withholding of the relevant records constituted a significant procedural shortcoming in the context of the relevant disciplinary process.

31.	The first disciplinary hearing took place on a date when the claimant was unfit for work.   (The Employer contends that he was merely “invited” to attend, as distinct from being required to attend.   However, we are satisfied that the implication of the written letter, which “invited” him to attend, was that he was being compelled to do so).  In our view, the imposition of a requirement upon the claimant to attend a disciplinary hearing at a time when he was unfit for work was a significant procedural shortcoming.  The claimant was unfit for work and a reasonable employer would have accepted that, in that situation, he was also unfit to attend a disciplinary hearing.

32.	However, the claimant was fit for work at the time when the main hearing of these tribunal proceedings took place.  During the course of this hearing; the account which he gave of his actions, and the defences which he put forward, were not significantly different from the account and defences which he had put forward during the disciplinary process.  Therefore, we are satisfied that this particular procedural shortcoming made no difference to the outcome of the disciplinary process.  Therefore, the employer has shown that it would have decided to dismiss the claimant even in the absence of this procedural shortcoming (even if the disciplinary hearing had taken place at a time when the claimant was fit for work).

33.	A significant aspect of the claimant’s defence was the assertion that, on each relevant occasion, very soon after he had been sighted entering the base, he left by the back door.  During the disciplinary process, Mr McFadden made enquiries of a member of staff on the question of whether, at the time of the relevant sightings, there was a readily accessible means of exit (to the streets) from the back yard of the premises, and was told by that member of staff that there was none.  Mr McFadden should have brought the outcome of those enquiries to the attention of the claimant, and should have allowed the claimant the opportunity to make observations in relation to that outcome, prior to arriving at his ultimate conclusions on the question of whether or not he believed the claimant to be guilty of the alleged misconduct.  The failure to allow the opportunity to make such representations was a significant procedural shortcoming.  However, we are satisfied as to the following.  If the claimant had had the opportunity to make the relevant representations, he would simply have asserted that, in January, February and March 2010, there was indeed a convenient means of exit, from the back yard to the streets.   Faced with those representations, an employer, acting within the range of reasonable responses, would have concluded that the particular question (the question of whether or not there was a convenient means of exit from the yard) was a question to which there was no clear answer.

34.	However, even if the relevant disciplinary process decision-makers had concluded that it was unclear whether or not (during the early part of 2010) there had been a convenient means of exit from the back yard, they would still have been left with substantial evidence in favour of the proposition that the claimant was guilty of the relevant alleged misconduct, and we are sure that they would nonetheless have concluded that he was guilty of that misconduct.  (We have already mentioned that evidence above, at paragraph 24).

35.	Accordingly, we are satisfied that the employer would have reasonably dismissed the claimant even if he had been allowed to make the relevant representations.

36.	In our view, apart from the procedural shortcomings identified above, there were no significant procedural shortcomings in connection with this dismissal.

37.	It must be emphasised that we ourselves have arrived at no conclusion on the question of whether or not the claimant was in reality guilty of the relevant misconduct, because it is unnecessary for us to arrive at any such conclusion for the purpose of determining this unfair dismissal claim.  In determining this claim, what we have to decide is whether or not the Employer, in concluding that it believed in the guilt of this claimant of the relevant misconduct, acted reasonably or unreasonably.  (As noted above, we consider that the Employer, when it decided upon dismissal, had reasonable grounds upon which to sustain its belief that this claimant was guilty of the relevant misconduct).

38.	So this tribunal is not the ultimate decision-maker on the question of whether or not the claimant was guilty of the relevant misconduct.  Instead our decision-making role is confined to the question of whether or not, in arriving at its conclusion that the claimant was indeed guilty of the misconduct, the Employer acted inside or outside the “range of reasonable responses”. 

39.	
For the sake of completeness, we should record that the claimant initially brought a claim, in the Fair Employment Tribunal, of religious/political discrimination, in connection with the dismissal.  However, by the time of the hearing of this case, he had abandoned that claim.

Chairman:

Date and place of hearing:	7-9 March 2011, Belfast.	

Date decision recorded in register and issued to parties: