Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   6091/09

 

 

 

CLAIMANT:                      Anthony McGeehan

 

 

RESPONDENT:                Royal Society for the Protection of Birds (RSPB)

 

 

 

DECISION

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

 

 

Constitution of Tribunal:

Chairman:              Mr N Kelly

Members:              Mrs V Walker

                              Mr J Walsh

                               

 

Appearances:

The claimant was represented by Mr G Watt, Barrister-at-Law instructed by Flynn and McGettrick Solictors.

The respondent was represented by Mr C Hamill, Barrister-at-Law instructed by McGrigors, Belfast LLP.

 

BACKGROUND

 

1.       The facts set out in this part of the decision, except where otherwise indicated, were not in dispute.

 

2.               The respondent is a charitable organisation which promotes bird conservation. It runs several nature reserves across the UK, including two in Belfast.  Those two reserves are, firstly, an area known as the Belfast Lagoon and, secondly, an area known as the Nature Conservation Area (NCA).  The two reserves are physically separate but are both located on the shore of Belfast Lough near Belfast City Airport. Only the NCA is relevant for the purposes of this decision.

 

3.               The NCA boundary fence, on the landward side, adjoins the City Airport, a Bank of Ireland building and a light industrial and warehousing area.

 

4.               The claimant was employed for approximately eleven years as the Site Manager for both Belfast reserves.  He had been the first person employed by the respondent on these reserves and had a major role in their initial setting up and in their subsequent development. In 2004, he was given a written instruction to notify his line manager immediately of any incidents at Belfast Lough. In 2007, he attended “on a three line whip” a roadshow, organised by the respondent for all field staff, which explained the respondent’s policy on predator control. In 2008, he received a disciplinary written warning for what was described as “inappropriate communication” with a member of the public. 

5.               The main function of the reserves was the protection of ground nesting birds such as lapwing.  The 2008/2009 breeding season for these birds had been seriously damaged by the activities of predators, mainly foxes, feral cats and crows.

6.               The claimant purchased two animal traps in April 2008.  He placed them on the NCA in December 2009.

 

7.       On or about 3 January 2009, two employees in premises adjoining the NCA complained to the Belfast Harbour Police that they had observed an incident of cruelty towards a fox on the NCA.

 

8.               On 6 January 2009 the claimant was informed by a Constable Edwards of the Belfast Harbour Police that there had been an allegation of cruelty involving a fox on the NCA.  He was told that he would be interviewed at the Belfast Harbour Police Station in relation to this allegation and he subsequently attended that interview accompanied by a solicitor.

 

9.               Throughout the disciplinary, appeal and tribunal process, the claimant maintained that he had had nothing to do with any alleged cruelty to a fox.  He stated that he had, on

           3 January 2009, found a dead feral cat in one of the traps he had placed on the NCA and that he had thrown the dead cat into some undergrowth. Shortly after the conversation with Constable Edwards on 6 January 2009, the claimant retrieved the body of the dead cat, photographed it and buried it.

 

10.           On 13 January 2009, Constable Edwards spoke to another employee of the respondent, a Miss Claire Ferry.  He told her that there had been an allegation of animal cruelty to do with culling foxes on the NCA.

 

11.           Miss Ferry immediately tried to contact Mr Gregory Woulahan, the claimant’s line manager, who was in England on business.  She left a message on his mobile telephone.  Mr Woulahan received that message the next day, 14 January 2009, and immediately telephoned the claimant.  The claimant told Mr Woulahan in the course of that first telephone call that he did not know anything about the allegation.

12.           The claimant phoned Mr Woulahan back shortly after the first telephone call to ask which police officer had contacted Miss Ferry.  The claimant then proceeded to describe the conversation with Constable Edwards which had taken place on 6 January, some eight days earlier.  He stated that he had told Constable Edwards that he had placed legal animal traps on the NCA.

 

13.           On 16 January 2009, the claimant was suspended from employment pending the outcome of the police investigation into the allegation of animal cruelty.

14.           On 23 January 2009, Mr Woulahan, accompanied by Ms Val Pearce, of the respondent’s HR Department, conducted an investigation meeting.  The claimant attended that meeting assisted by a colleague.

 

15.           On 10 February 2009, two disciplinary charges were put to the claimant;

 

               (i)  that he had breached the respondent’s Vertebrate Control Policy by    setting a trap without the consent of his line manager or of the respondent’s Land    Management Group and in contravention of the management plan for the    reserve (the first charge).

 

(ii)     that he had wilfully withheld information about an allegation of possible animal cruelty which could have led to a criminal prosecution (the second charge).

The second charge was described as a charge of gross misconduct and the claimant was advised that the penalty following the disciplinary action could include dismissal.

16.     The disciplinary meeting was held on 17 February 2009.  It was conducted by Mr Simon Stennet, the Regional Reserves Manager for the South-West of England, assisted by Ms Val Pearce.  The claimant attended assisted by Mr Paul Dillon, a PCS Official.  The two charges were upheld.  Mr Stennet decided that the first charge amounted to serious misconduct and that the second charge amounted to gross misconduct.  The claimant was, by a letter dated 13 March 2009, dismissed summarily in relation to the second charge (withholding information from his employer).    The respondent made it clear that he would have been in any event dismissed in relation to the first charge and that the extant written warning would have been taken into account in relation to that decision.

17.     On 16  March 2009, the claimant appealed against his dismissal.  The appeal meeting was conducted on 8 April 2009 by Mr Chris Corrigan, the respondent’s Regional Director for South-East England, assisted by Mr Andrew Dickerson of the respondent’s HR Department. The claimant was again represented by Mr Dillon.  On 20 April 2009 the claimant’s appeal was dismissed and his summary dismissal was confirmed.

 

THE ISSUE

 

18.               The issue to be determined by the tribunal was whether the claimant had been       unfairly dismissed by the respondent contrary to Article 131 of the Employment       Rights (Northern Ireland) Order 1996.

 

FINDINGS OF FACT

 

19.     The subject matter of this claim first arose because two employees in premises which adjoined the NCA complained to the Belfast Harbour Police that they had seen an individual drown a trapped fox.  That alleged incident was recorded on CCTV.  However it did not form part of the respondent’s disciplinary charges and no criminal prosecution occurred.  The tribunal therefore did not view the CCTV footage and did not take the witness statements of those two employees into account.

20.     At the disciplinary meeting on 17 February 2009, Mr Stennet had before him the agreed note of the investigation meeting, statements from Mr Woulahan and Ms Ferry, a document from the claimant in which he clarified his view of predator control and details of the RSPB Roadshow in 2007, together with the photograph taken by the claimant of the dead feral cat.

21.     The note of the investigation meeting had previously been given to the claimant, in draft, for agreement and had been substantially amended by the claimant.  Mr Stennet was therefore entitled to conclude that the claimant agreed with the amended notes and he was entitled to regard those notes as an accurate record of what was said at that meeting.

22.     The claimant’s submission at the disciplinary hearing in relation to the first charge   (using unauthorised traps) was that:

  (i)     trapping was part of the culture of the Reserves.

 

     (ii)      the 2008 breeding season had been a disaster because of predation by foxes, cats, etc.

                   (iii)            cats were coming on to the NCA from the Bank of Ireland site.

                   (iv)            traps had only been set to monitor cat activity.  The claimant wanted to bring the        situation to the attention of the Bank of Ireland.

                    (v)            the claimant had purchased traps in April 2008 after discussion with the Site Manager of EMO Oil.  He had used a RSPB credit card.

                   (vi)            Mr Woulahan would have been aware of the purchase orders for those traps;

                  (vii)            legal traps were part and parcel of the claimant’s regular work and were his prerogative as a Site Manager of the reserves in liaison with his line manager (Mr Woulahan).

                (viii)            the claimant would keep Mr Woulahan appraised of the situation.

                   (ix)            the claimant was surprised that Land Management Group consent was required before traps could be used

                    (x)            the Management Plan for the Reserve was target based and not practicalities based.

                   (xi)            the traps were too small for foxes but they could have caught a mink or cat;

                  (xii)            any live cats caught on the trap would have been taken to Cat Rescue and any mink to Tom Black, a pest control operative.

                (xiii)            the claimant had attended the respondent’s Predator Control roadshow in 2007.  He did not remember anything about control from that Roadshow.  The field staff got nothing new out of the day.  The PowerPoint presentations had not provided sufficient detail.

                (xiv)            he was using the traps to monitor cats, not to kill them, and the Predator Control policy was not relevant.

 

23.    In relation to the second charge (withholding information from his employer);

 

(i)       the claimant denied that he had told Mr Woulahan that Constable Edwards had used “legal jargon” when he had spoken to the claimant on the 6 January.

                 (ii)         it was the claimant’s wife who had suggested that he should seek legal advice before being interviewed by Constable Edwards.  It was his nephew who advised him to take a solicitor to the interview.  He did not know what he was to be interviewed about by the Belfast Harbour Police or why he was to be interviewed.

               (iii)        the proposed police interview was not an” incident” and therefore the written   instruction he received in 2004 to “notify Gregor Woulahan immediately of any incidents that happen at Belfast Lough” was not relevant.

               (iv)        the claimant’s representative regarded questions about the potential impact on RSPB in terms of reputational damage as hypothetical and the claimant did not respond to those questions.

                (v)        the claimant had told Ms Ferry on 14 January that he did have traps “for catching the odd fox or feral cat, but none had been caught recently”.  The dead cat that he had found in his traps ten days earlier was not “really recent”.

               (vi)        the claimant could not recall Constable Edwards telling him that he would      be interviewed under caution.

 

24.      The claimant had authority to purchase items up to £500.00 without Mr Woulahan’s approval, using the respondent’s credit card.  Mr Woulahan’s approval had not been expressly given for the purchase of the traps in April 2008 and there was no evidence before Mr Stennet that Mr Woulahan had noticed the items on the visa statements.  Mr Woulahan did not accept that he had any prior knowledge of the purchase or use of the traps before being notified on 14 January 2009 of the investigation by Constable Edwards.

25.           The claimant had said at the investigation meeting, and it is recorded in the agreed investigation meeting notes, that the traps were for cats and mink.  Mink were known on the site.  Under the Wildlife Order, mink would have to been killed once trapped.  Any feral cats which were trapped were unlikely to have been rehoused and were therefore likely to have been killed.  In additional documentary information supplied by the claimant to the investigation meeting, the claimant stated that the traps “could have caught a mink, rabbit, or feral cat”.  He also stated “traps set to catch feral cats and possible mink”.

26.     No mention whatsoever had been made by the claimant during the investigation meeting or in the supplementary documentation that he supplied to the investigation, of any claim that his sole intention in the use of the traps was to monitor cats.  That claim first emerged in the course of the disciplinary hearing.

27.     The management plan for the Reserve for 2008-2013, which had been prepared by the claimant and Mr Woulahan, was a detailed fifty one page document which included a list of thirty projects including various monitoring exercises.  There was no record of any project to monitor (or in any way control) feral cats.

28.     The presentation given at the 2007 Roadshow was entitled “Predation and its management on reserves”. The PowerPoint slides made it plain that there was “an established procedure for obtaining authorisation to kill predators”.  A specific case study dealt with, on a step by step basis, the measures to be taken where there was a predator threat to nesting lapwing (the precise problem faced by the claimant). One slide set out the procedure to obtain authorisation to kill predators on a RSPB reserve.  It made it clear that a project plan had to go first to regional management and then to HQ Land Management Group before authorisation could be given.

29.     Mr Stennet decided to uphold both charges and to dismiss the claimant summarily on the second charge.

30.     Mr Corrigan heard the appeal together with Mr Dickerson.  The CCTV footage and the statements of the two individuals who had complained to the Belfast Harbour Police did not form part of the appeal process.

31.     Mr Corrigan familiarised himself with the details of the 2008 incident which had led to the written warning on the claimant’s file.

32.     Mr Corrigan stated in evidence and the tribunal accepts that the respondent’s Reserves Ecology Department were the respondent’s experts on Predator Control.  Mr Corrigan stated and the tribunal accepts, that he would have expected them to have been involved in any plans for monitoring or otherwise controlling feral cats on the NCA.  There had been no such involvement in the present case.

33.     Mr Corrigan stated the potential for an animal cruelty allegation against the respondent, or one of it’s employees, was one of the respondent’s biggest reputational risks on two counts;

   (i)    firstly the sensitivities of the respondent’s members and of the general

                              public   towards any issue of animal cruelty;

(ii)         the high profile campaign run by the respondent against the illegal persecution of predator birds of prey.

34.     Mr Corrigan claimed that the respondent had to be “squeaky clean” on this issue.  If an RSPB employee was shown to have used cruel methods of predator control, that fact would undermine the respondent’s image and would undermine the respondent’s national campaign against the poisoning of birds of prey, such as the sea eagle.  That seems to the tribunal to be entirely logical and the tribunal accepts that evidence.

          When Mr Corrigan put it to the claimant that the Reserves Ecology Department should have been involved in any decision to place traps on the NCA and suggested that was “the missing bit”, the claimant replied;

“Not missing for me.   I am the foot soldier and have total open communication.  We wanted to reduce the effects of predation on the birds.”

When pressed further on this by Mr Dickerson, the claimant stated;

“I’m pretty sure I would have informed Gregor Woulahan, but I don’t have a written note.”

When asked what he would have done with a mink caught on the trap, the claimant stated;

“I cannot elucidate on the law.  If a fox or a feral cat, Tom Black is paid to deal with this.”

 

35.      Mr Corrigan upheld the decision to summarily dismiss the claimant.

 

CONTENTIONS OF THE PARTIES

 

Claimant’s Contentions

 

36.     In relation to the first charge, the claimant argued that he had used the traps           with the knowledge of his line manager Mr Woulahan.  The traps had been purchased in April 2008 but it had not been used until December of that year.  They were too small to catch foxes.  His only intention in setting the traps had been to “monitor” feral cats which he believed were entering the NCA from the adjacent Bank of Ireland property.  The RSPB policy on controlling vertebrates was not relevant to a monitoring exercise and was only relevant to exercises which involved killing animals.  In the claimant’s view, the respondent had been wrong to hold that he had been in breach of that policy.  The claimant had not known that any mink caught in the trap would have had to been destroyed by law.

37.     As far as the charge of withholding information was concerned, the claimant knew that the complaint which had been made to Constable Edwards concerned cruelty to a fox and that could have had nothing to do with him.  There had only been a gap of eight days between the date on which he had spoken to Constable Edwards and the date on which Constable Edwards had spoke to Ms Ferry.  As far as the claimant knew, the respondent had done nothing to mitigate any negative publicity since they knew of the issue and that there had in fact been no negative publicity.  On that basis, the claimant argued that it had been wrong for the respondent to uphold the second charge.  Mr Stennet and Mr Corrigan had not honestly held a view that there was any risk of reputational damage.

38.           Mr Watt challenged the respondents “bona-fides” in the conduct of the disciplinary and appeal process.  He argued that the respondent had not in reality believed that the use of these traps was going to lead to the death of any animal.  He further argued that the respondent had been wrong to take into account a written warning issued in 2008 when considering the second charge.   There had been no compelling reason to take that warning into account and it was up to the respondent to establish such a compelling reason and in fact establish a link between the two incidents.  The respondent had not shown why the 2008 incident had been considered relevant to the decision to dismiss.

39.           Mr Watt further argued that the investigation had been defective;

  (i)     CCTV had not been viewed in the claimant’s presence;
 (ii)     Mr Stennet had not viewed the claimant’s Personnel record or file;
(iii)      Mr Stennet did not make any comparison to other cases in terms of

penalty;

          (iv)      Mr Corrigan did not take steps to find out the claimant’s contribution to the work of the Society.    

40.           Mr Watt argued that the Tribunal should take into account the claimant’s eleven years of service in considering the fairness of the dismissal.

CONTENTIONS OF THE RESPONDENT

41.           Mr Hamill submitted the claimant had, over time, changed his explanation for using the traps on the NCA.  He had also changed his explanation of which animals had been the target of the traps and what the fate of the animals would have been once trapped.  His explanation for failing to inform his employer of the police investigation had also been vague and contradictory.  The claimant could not explain the changes in his explanation or the contradictions in his evidence.  The respondent had been entitled to conclude that he had been engaged in predator control, without permission, and completely outside the procedures which had been explained in detail to him and to other members of staff at the RSPB Roadshow in 2007.  The claimant had been directed “on a three line whip” to attend that Roadshow together with all other staff and had been fully aware of the importance that the respondent placed on this issue.

42.           The claimant stated that on 4 January 2009, he had discovered a dead feral cat in one of his traps.  He had moved and discarded the body of that feral cat on the NCA site.  On 6 January 2009 he was advised by Constable Edwards that he was to be interviewed under caution in relation to an allegation of animal cruelty.  He had been asked to bring a trap to the station.  He had sought legal advice.  He must have known, and the respondent was entitled to conclude that he had known, that he was the subject of the police investigation and that any such investigation could have had serious implications for the reputation of the respondent.  However, he failed to tell his employer anything about the allegation until the matter was raised directly with him by Mr Woulahan, and then only in the course of the second telephone call on 14 January.

43.           The use of the traps without permission and the non-disclosure of the police investigation involved a serious breach of trust and the respondent had been entitled to dismiss summarily in relation to the second charge (withholding of information) and to regard, in any event, the setting of traps as an issue of serious misconduct which would have, on its own merits, resulted in dismissal.

 

RELEVANT LAW

 

44.               In Iceland Frozen Foods Limited v Jones [1982] IRLR 439 the Employment Appeal Tribunal determined that the function of an Industrial Tribunal in cases of this nature is to determine whether, in the particular circumstances of each case, a      decision to dismiss the employee falls within the band of reasonable responses          which a reasonable employer might have adopted.  If the dismissal falls within that   band, the dismissal is fair; if the dismissal falls outside that band, it is unfair.

 

45.               The Court of Appeal in Andrew James Taylor v OCS Group Limited [2006]           EWCA Civ 702 stated;

          “The use of the words “rehearing” and “review”, albeit only intended as an illustration, does create a risk that Employment Tribunals will fall into the trap of deciding whether the dismissal procedure was fair or unfair by reference to their view of whether an appeal was a rehearing or a mere review.  This error is avoided if Employment Tribunals realise their task is to apply the statutory test.  In doing that, they should consider the fairness of the whole disciplinary process”.

The Court went on to say:

”In saying this, it may appear that we are suggesting that Employment Tribunals should consider procedural fairness separately from other issues arising.  We are not; indeed it is trite law that [GB Equivalent Legislation] requires the Employment Tribunal to approach it’s task broadly as an industrial jury.  That means that they should consider the procedural issues together with the reason for the dismissal as they have found it to be.  The two impact on each other and the Employment Tribunal’s task is to determine whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss”

 

46.     Article 130 of the 1996 Order provides that the determination of the question, i.e., whether the dismissal is fair or unfair, depends on whether, in the circumstances [including the size of and the administrative resources of the employer’s undertaking], the employer acted reasonably or unreasonably in treating the reason for the dismissal as a sufficient reason for dismissing the employee and that question shall be determined in accordance with equity and substantive merits of each case.

47.     The tribunal has a limited role in cases of this type.  It is not for the tribunal, when considering the fairness or unfairness of this dismissal, to conclude whether or not the claimant had set traps without permission or to conclude whether or not the claimant had withheld information as described in the disciplinary charges.  Those are matters which fell to be determined by the respondent.  The tribunal’s role is to determine whether or not the respondent acted fairly in all the circumstances in dismissing the claimant.  The Court of Appeal in London Ambulance Service NHS Trust v Simon Small [2009] EWCA CIV 220 stated, at paragraph 43, that the real question, which a Tribunal has to bear in mind in these circumstances, is whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal.  It stated at Paragraph 44-46:

“(44) I agree with the EAT that the ET was bound to make findings of fact about Mr Small’s conduct for the purposes of deciding the extent to which Mr Small’s conduct contributed to his dismissal.   That was a different issue from whether the Trust unfairly dismissed Mr Small for his conduct.  Contributory fault only arose for decision, if it was established that the dismissal was unfair.  The contributory fault decision was for the ET to make on the evidence that it had heard.  It was never a decision for the Trust to make.  That makes it different from the decision to dismiss, which was one for the Trust to make.  It was not the role of the ET to conduct a re-hearing of facts which formed the basis of the Trust’s decision to dismiss.  The ET’s proper role was objectively to review the fairness at Mr Small’s dismissal by the Trust.

(45) I am unable to agree with the EAT that the ET kept the issues and the relevant facts separate or that it avoided the error of substituting its own judgement about dismissal.  Although the ET rightly warned itself against substitution and thought that it was not falling into that error, my reading of the facts is that its findings about Mr Small’s conduct seeped into its reasoning about the unfairness of the dismissal.”

48.           In Santamera v Express Cargo Forwarding trading as IEC Limited [2003] IRLR 273, the EAT held that;

[Equivalent GB Legislation]  and the cases decided under it and its predecessors do not, of course, require the dismissing employer to be satisfied, on the balance of probabilities, that the employee whose conduct is in question has actually done what he or she is alleged to have done.  In a dismissal based on conduct, it is sufficient for the employer to have a genuine belief that the employee has behaved in the manner alleged, to have reasonable grounds for that belief, and to have conducted an investigation which is fair and proportionate to the employer’s capacity and resources.  The employer has to act fairly, but fairness does not require a forensic or quasi-judicial investigation, for which the employer is unlikely in any event to be qualified, and for which he, she or it may lack the means”.

49.           In Sainsburys Supermarkets Limited v Hitt [2003] IRLR23, the Court of Appeal held that;

“the range of reasonable responses tests (or to put it another way, the need to apply the objective standards of the reasonable employer), applies as much to the question of whether the investigation into the suspected misconduct was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss for the conduct reason.”

50.           The approach set out in the case law quoted above was endorsed by the Northern Ireland Court of Appeal in Dobbin-v- Citybus Ltd  [2008] NICA 42 and later in Rogan-v-EHSCT NICA.

DECISION

 

51.           The tribunal concludes the reason for the dismissal in this case was misconduct.

52.           The claimant was summarily dismissed on the second charge, i.e., withholding information.  Mr Stennet and Mr Corrigan were, in the opinion of the tribunal, entitled to reach the decision that the claimant had wilfully withheld information in the manner set out in the charge.  Mr Corrigan had before him a letter from Constable Edwards in which he confirmed that he had spoken to the claimant, and had told him that he was to be interviewed under caution, that he wasn’t being arrested at that point and that he should bring an animal trap with him to the station.  The claimant’s own evidence to the disciplinary appeal hearing was that he had placed a trap on the NCA on 3 January 2009 and that on 4 January 2009 he had found a dead feral cat in that trap. He had disposed of the dead cat on the site.  Mr Stennet and Mr Corrigan were entitled to conclude that the claimant had made the link between that incident and the allegation of animal cruelty raised by Constable Edwards.  He had almost immediately gone to retrieve the body of the feral cat, photograph it, and then bury it.  They were therefore entitled to conclude that he knew that he was the subject of the police investigation and that that investigation centred on activity undertaken in the course of his employment on the NCA.  It was therefore clearly a matter which involved considerable reputational risk to the respondent given the nature of its activities and its campaign against unlawful methods of controlling predator birds of prey.  It was equally clear that the claimant, while knowing that he, as a RSPB employee was the subject of an ongoing police investigation carrying with it severe reputational risks to his employer, did not at any point during the eight days following 6 January 2009 make any attempt to acquaint his employers of that issue.  Indeed, it seems clear, and the respondent was entitled to conclude, that the claimant would not, at any stage, have raised that matter with his employer if his hand had not been forced by Constable Edwards contacting Miss Ferry.

53.           The employer was entitled to take into account the 2004 instruction which made it plain to the claimant that he should keep his line manager informed of any incident on the reserves.  His explanation to Mr Stennet that the police investigation was not a “incident” was not an explanation which a reasonable employer was obliged to accept.

54.           The tribunal therefore concludes that the respondent had formed a genuine belief that the claimant had withheld information which he should have disclosed to his employer and that the respondent had conducted a reasonable investigation and a fair disciplinary and appeal process. The claimant’s criticisms of the investigation and disciplinary process have no merit. The CCTV footage was irrelevant to the two disciplinary charges. It was not necessary for Mr Stennet or Mr Corrigan to physically examine the claimant’s personnel file. The respondent did take the claimant’s record into account. The tribunal further concludes that, looking at all the circumstances of the case, a decision to summarily dismiss the claimant in relation to the second charge was well within the band of reasonable responses open to the respondent.

55.           In relation to the first charge, the claimant was unable to point to any permission given by Mr Woulahan for the purchase of the two traps or for placing traps on the NCA in December 2008 and January 2009.  Much of the claimant’s case in this respect was a simple assertion that since he had used his RSPB credit card, Mr Woulahan “must have known about it”.  However, the evidence before the respondent was that Mr Woulahan was not required to give specific approval to such purchases and he had not been aware of any such purchase.  All that the claimant had put forward during the disciplinary and appeal process was that he thought, or was sure, that he had told Mr Woulahan about the traps but he couldn’t remember when or how that had been done.  Furthermore he had no written note of that discussion.  Given the seriousness of the issue, that was surprising and the respondent was entitled to conclude that Mr Woulahan had not given permission for, or been aware of, the purchase or use of the traps.

56.           The respondent was also entitled to place significant emphasis on the fact that the claimant’s argument that the use of the traps were simply a monitoring exercise did not emerge until the disciplinary hearing and also that the alleged monitoring exercise did not appear among the monitoring exercises listed in the Reserve Management Plan which had been prepared by the claimant and his line manager.

57.           The tribunal therefore concludes that the respondent was entitled, on the evidence adduced in the disciplinary and appeal process, to conclude that the claimant had placed the traps on the NCA without permission and also, given the detailed material available to the claimant in course of the RSPB Roadshow, to conclude that the claimant had knowingly breached the respondent’s policy in relation to the placing of animal traps.  The argument that the intention was simply to monitor feral cats entering the site and that killing of animals would not have been the result of placing the traps was, in the opinion of the tribunal, entirely unconvincing and an argument which the respondent was entitled to reject.  Any trapped mink would have had to have been destroyed and the idea that feral cats could have been rehomed or would have met any fate other than to have been destroyed was absurd.

58.           The tribunal therefore concludes that the respondent was entitled to uphold the first charge and that, if that had been the only charge, the respondent was entitled to conclude that the claimant would have been dismissed on that basis also.

 

59.       The tribunal therefore concludes that the claimant was fairly dismissed.

 

 

 

 

Chairman:

 

 

Date and place of hearing:  8-11 March 2010, Belfast.      

 

 

Date decision recorded in register and issued to parties: