McLarnon v R Heatrick Ltd [2014] NIIT 748

THE INDUSTRIAL TRIBUNALS

CASE REF: 748/14

CLAIMANT: Alastair McLarnon

RESPONDENT: R Heatrick Ltd

DECISION

The unanimous decision of the tribunal is:-

(1) The claimant was not unfairly dismissed and his claim is dismissed.

(2) The claimant’s claim for written terms and conditions of employment was not made out on the evidence and accordingly this claim is dismissed.

Constitution of Tribunal:

Employment Judge: Employment Judge McCaffrey

Members: Mrs S Doran

Mr J Magennis

Appearances:

The claimant was represented by Mr Tom Campbell of Campbell Stafford Solicitors.

The respondent was represented by Ms Dolores Rooney of ELC Limited.

Issues

1. The issues for the tribunal to consider were:-

(1) Whether the claimant had been unfairly dismissed from his employment as a skip driver?

(2) Whether the claimant had removed goods without permission from the respondent’s premises on 22 August 2013?

(3) Whether the respondent carried out a full and proper investigation, disciplinary procedure and appeal procedure into the alleged misconduct of the claimant.

(4) Whether the claimant was in all the circumstances fairly dismissed?

(5) Whether the claimant had been provided with written terms and conditions of employment? If not, what would be appropriate compensation for this?

Facts

2. We received witness statements and heard evidence from the claimant, his former employer Mr Bernard O’Neill and Mr Putt. We also received witness statements and heard evidence from Gail Boyd, Sara Harrison and Paula Brady for the respondent. A number of documents were opened to us, and arguments adduced, not all of which were relevant to the issues before us. On the basis of the evidence heard, we make the following findings of relevant facts.

3. The claimant was employed as a skip driver, initially with O’Neill’s Contracts starting in June 2003. In March 2012 the business was sold to the respondent and the claimant along with other employees transferred to the respondent’s employment under the provisions of the Transfer of Undertakings Regulations.

4. In June 2012 the claimant suffered an accident at work when he was injured in an incident at a third party’s premises. He resumed work in December 2012 after quite a lengthy absence. The claimant asserted that the respondent’s subsequent dismissal of him in February 2014 had its basis in the fact that he brought a personal injury claim against the respondent and a third party in connection with the injuries he sustained in an accident at work. The respondent disputed this, arguing that the claimant was fairly dismissed for dishonesty.

5. The claimant called as witnesses Mr Bernard O’Neill, the previous owner of the business and Mr Putt who had worked in the office at O’Neill’s Contracts. Both Mr O’Neill and Mr Putt were clear that during his employment at O’Neill’s, the claimant and other employees had been permitted to remove rubbish material including wood from the premises. Mr O’Neill said that he was aware that the claimant had a wood burning fire at his home and that the claimant removed material with permission. Employees were never charged for any material they took with permission. He noted however that the practice may have changed as he was no longer involved in the running of the company. He was clear in cross-examination, as was Mr Putt, that employees were allowed to remove wood with permission. During Mr O’Neill’s ownership of the business there was no practice where employees could remove certain items only with payment, but he was clear that permission was required. In his words, “It all depended what type of scrap material; various employees would have asked if they had wanted anything.” This is slightly different from the claimant’s account of him having sought permission. His understanding was that employees were allowed to take rubbish from the skips for personal use. His statement to the tribunal says,

“As long as our employer was aware of this we do not have to pay for such material. I have a wood burning fire in my home and these pieces were used to heat the house. This was with the knowledge of my employer.”

This part of the claimant’s evidence is consistent with Mr O’Neill’s evidence. The claimant went on to say that after the respondent took over the business in 2012 he asked the site manager Anthony McAllister if it was still permissible to take home wood from the skips. His evidence was that Mr McAllister said that this was fine and he did not tell the claimant that he had to ask permission on each occasion or pay for fire wood. The claimant’s evidence was that he took wood regularly. While he said it would depend on what came in on the skips, it is clear that he took wood at least weekly and often more frequently. The yard was covered by CCTV cameras, which could be viewed on monitors in the office.

6. After the claimant returned to work after his extended sick leave in December 2012, he again asked Mr McAllister if it was permissible for him to take home wood, just in case there had been any changes during his absence. Mr McAllister confirmed that this was acceptable. The claimant was quite clear that he took the wood on a regular basis. Mr McAllister was not called to give evidence at the hearing.

7. On 22 August 2013 a skip of wood had come into the respondent’s yard at Groganstown Road. The business run by the respondent is a recycling business therefore the respondent has an interest in trying to recycle material which it is handling and derive an income from it. It is not simply a matter of dumping material into land fill, for which there is a charge.

8. The claimant indicated that much of the wood in this skip was in a poor condition and normally would be shredded and not resold. He loaded scraps of wood into a builder’s ton bag with the help of a colleague, Matt Tennyson. This was done during his lunch break.

9. On the same day the claimant had an exchange with the Managing Director of the respondent, Trevor Heatrick, who came over to him at lunchtime and asked him what he was doing. Mr Heatrick indicated that the claimant’s break was too long and queried him about his productivity. The claimant said Mr Heatrick had accused him of “milking it” and went on to say, “It’s time you were moving on”. At the time of this conversation the claimant had already filled the bag with wood.

10. On 23 August 2013, Trevor Heatrick spoke to Sara Harrison, the Health and Safety Systems Manager of the respondent, who was based at their Portadown Office. He told her that the previous day the claimant had been recorded on CCTV footage taking wood from the site at Groganstown Road, loading it onto his lorry and driving off. Ms Harrison sought some advice in relation to this matter and then subsequently contacted Gail Boyd, who is an Office Manager. At Ms Harrison’s request she carried out an investigatory meeting with the claimant on 23 August 2013 in the presence of Raymond Magowan (who worked in the office at the Groganstown site). This meeting took place in the late afternoon shortly before close of business. The claimant was shown the CCTV footage and confirmed that the footage showed him loading wood onto his lorry and leaving the yard. The claimant’s evidence was that he had asked Anthony McAllister if he could take some wood for firewood from the skip and was told, “Go ahead, everyone else does”. He also advised Ms Boyd of the practice under his previous employer and that he had always taken firewood. This arrangement was confirmed by Raymond Magowan who said that he had always taken wood with permission from his employer.

11. Ms Boyd had made the claimant aware the incident may be an act of gross misconduct at the outset of the meeting and she told him that he was being suspended from work pending further investigations. She advised him of his right to be represented if he wished. The claimant made Ms Boyd aware of the exchange he had with Trevor Heatrick the previous day. At the meeting of 23 August, he also asked Ms Boyd and Mr Magowan to observe another member of staff removing a wheelie bin full of timber from the yard which they had noted.

12. Ms Boyd said that after this meeting she went to speak to Mr Heatrick and asked him about the other employee who was removing wood. The employee who had been wheeling the bin of wood is Wojciech Strachyra. Ms Boyd’s evidence was that this employee (known as Willie) had been wheeling the bin of wood to the home of Waldemar Markowski, who lives close to the site. A receipt was made out to Waldemar dated 23 August 2013 and marked “paid”.

13. Ms Boyd said in her evidence to the tribunal that she was concerned that the claimant was not clear in his account of matters to her. It seemed to her that he had been trying to conceal his actions as, when he was packing up the wood, there was a space between the skip and the body of his lorry which would not be visible from the site office as he was leaving the yard. Ms Boyd recorded her account of the investigatory meeting and returned this to Ms Harrison. Ms Harrison then sought advice from the respondent’s advisers before pursuing the matter further.

14. The claimant was then invited to a disciplinary meeting. He was provided with information including statements from Trevor Heatrick and Anthony McAllister, the minutes of the investigation meeting and a copy of the company’s disciplinary procedures and gross misconduct rules and regulations. The letter clearly sets out the allegations against the claimant, advises him that he can be accompanied by a work colleague or a trade union representative and indicates that the company considers the allegation to be a matter amounting to gross misconduct. The claimant was made aware that a potential outcome of the hearing would be his dismissal without notice.

15. Following that letter, the claimant produced a doctor’s certificate indicating that he was not fit for work for a period of two weeks. It would appear that the doctor had not actually seen the claimant as his comments read, “The patient has left a message with my staff, indicating that he does not yet feel well enough to attend a workplace meeting on 9/9/2013. In the circumstances it seems best to defer this”.

16. The claimant remained certified as sick for some time following this. Ms Harrison made a number of attempts to proceed with the hearing and to facilitate the claimant by rearranging the disciplinary meeting. Eventually on 3 December 2013 she wrote to the claimant rearranging the disciplinary meeting for 18 December 2013 and indicating that if the claimant did not attend, the meeting would proceed in his absence. The claimant attended this meeting with a work colleague named Gerard Toner.

17. The disciplinary meeting was conducted by Ms Harrison. She went through the allegations made against the claimant and asked for his comments. The claimant reiterated that it was common practice for ten years to take wood from the site and that he had sought permission from Anthony McAllister. He also stated at this meeting that he thought all terms and conditions of employment had transferred under TUPE and that if the company was not aware of this term, then it was the fault of the administrators. Ms Harrison pointed out that she had had a meeting with each member of staff when the business transferred and had asked them if they had any specific terms and conditions which were personal to them. Permission to remove wood had not been mentioned by the claimant at that time.

18. At that meeting Mr Toner confirmed that it had been the practice for employees to take wood from the site and they didn’t believe they were doing anything wrong. There was some discussion as to what was an acceptable amount to remove or what was a “significant amount”, given that Mr Heatrick had referred in his statement to payment being required for any significant quantities of wood taken. Mr Heatrick’s statement indicated that on 22 August 2013 the claimant had taken “a significant amount of wood without authorisation”.

19. The claimant reiterated that he had been told by Anthony McAllister that it was ok and queried whether he needed permission on each occasion. It was put to the claimant that Mr McAllister had given a statement confirming that the claimant had not asked his permission to remove waste wood from the site for his own use on 22 August 2013, and in response the claimant indicated he had nothing to say. In his witness statement to the tribunal he indicated that Mr McAllister’s statement was correct “as far as it goes” but it was misleading. The claimant said in his witness statement that he did not ask Mr McAllister’s permission on the day in question and that he was not aware that it was required because Mr McAllister had told him previously that it was acceptable and because of the fact that Mr McAllister was aware of what he was doing. The claimant did not however state this at the disciplinary meeting. We are satisfied from the evidence of the claimant and from the statements produced to Ms Harrison during the disciplinary process that the claimant did not ask permission to remove wood on 22 August 2013.

20. At the disciplinary meeting the claimant refers to the exchange with Mr Heatrick about the amount of time he had taken for his lunch and suggested that he had “maybe got Trevor’s back up”. He went on to say that there had been other things said by Trevor as well. When he was asked what these were the claimant’s answer was that he had them written down at home and that he didn’t have them with him. It was pointed out to him that these issues could not be taken into consideration if the claimant did not have the information with him. In his evidence to the tribunal the claimant suggested that Mr Heatrick had accused him of “milking it” on 22 August 2013 although this appears to refer to the length of time the claimant was taking for his lunch break. The claimant also referred to Mr Heatrick suggesting that it was “time he moved on” although again it was not clear if this was simply a reference to the length of time the claimant was taking for his lunch break, or if it was a suggestion that the claimant should no longer be employed by the respondent. The claimant himself was not entirely clear about it and since he did not raise it at the disciplinary meeting, it seems to us surprising that he would raise it subsequently, or not be able to recall the detail of this conversation if he had been so concerned about it.

21. The disciplinary meeting took place on 18 December 2013. Ms Harrison wrote to the claimant a couple of days later indicating that she wished to carry out some further investigations and that she would let him have the outcome of the meeting after the Christmas break.

22. The business was closed for approximately a week over the Christmas holidays. On 14 January 2014 Gail Boyd held a number of meetings with other employees at the company to clarify with them their understanding of the rules regarding removal of items from the yard. The same questions were asked of all the members of staff interviewed. All of them indicated that they would have to ask Trevor Heatrick or Anthony McAllister if they wished to remove anything. When they were asked if they had removed anything without permission, they all indicated that they had not, that they would always ask. It is perhaps worth noting that at this stage the claimant had been suspended from work for four months in similar circumstances.

23. Ms Harrison wrote to the claimant with an outcome letter on 3 February 2014 setting out the outcome of the disciplinary procedure. In her evidence to the tribunal she indicated that she had believed the account given to her by Anthony McAllister whom she had always found to be “up front and honest”. The meetings with other employees had led her to believe that it was established that permission was required to remove goods on each occasion. She found the claimant’s account of events to be inconsistent. She formed the view that it was not the case that he was unclear or had simply misunderstood the company policy but that he had in fact stolen the goods. She also took into the account the amount of wood it would normally be permitted to take without charge and believed that the amount that the claimant had taken far exceeded this. Her statement says,

“I took the decision to dismiss the employee due to the seriousness of the issue. It was one of theft and I believe that his honesty was found to be wanting and that it was an appropriate sanction”.

24. The outcome of the disciplinary hearing was that the claimant was dismissed for gross misconduct and advised of his right to appeal. The dismissal letter is lengthy and detailed.

25. The claimant appealed his dismissal by letter of 5 February 2014. An independent consultant named Paula Brady was retained to conduct the appeal which took place on 28 February 2014. The claimant had set out four main grounds of appeal. First of all he pointed out that he had worked for the company for 10 years and had maintained a clean disciplinary record and worked to a high standard. Secondly, the claimant indicated that it was his understanding that employees were “authorised to take firewood for their own use as part of custom and practice”. He went on to say,

“Personally no request for these materials has ever been refused to me and as such gives no cause to suggest that I had any reason not to seek permission in this incidence. Permission was requested and given”.

The next point indicated that there had been considerable discussion around the need to identify significant quantities of wood which had to be paid for. The claimant asked for disclosure of any records in relation to payment for materials purchased by employees. Finally he said that he believed that he had been unfairly dismissed for misappropriation of company property as he considered that his actions adhered to custom and practice.

26. The claimant’s assertion was that the receipts which were produced in relation to payments made by a fellow employee named Waldemar and one other (whose name is illegible on the copy receipts we received) were not genuine. Mr Campbell cross-examined both Ms Boyd and Ms Harrison in relation to these receipts but he was unable to adduce any convincing evidence to show that the receipts were not genuine, and accordingly we find that they were genuine.

27. Mr Campbell also questioned Ms Boyd on the statements taken from the other work staff including drivers and site operatives other than Mr Heatrick and Mr McAllister. It was put to her that she had asked the same questions to everyone and she agreed that that was the case. She also noted that many of these employees concerned were foreign nationals and she needed to use an interpreter which on occasion meant that she received similar answers each time. She agreed that she had not asked the workers concerned about custom and practice within the workplace. It was put to her that Mr Magowan had referred to a custom and practice of staff members taking wood and Ms Boyd noted that Mr Magowan had not used those words to her. She also explained that she had not explored the matter any further with Mr Magowan because he had told her that he had sought permission to take the wood concerned.

28. Mr Campbell also sought to argue that there was bias in the way that the disciplinary procedure was carried out and particularly referred to email messages sent by staff of the respondent, in particular by Ms Harrison, to Paula Brady the consultant who was asked to carry out the appeal and to their advisors, ELC. He referred to emails sent by Sara Harrison to ELC, which he suggested showed that the outcome of the disciplinary process was a foregone conclusion.

29. In particular he referred to the following matters:-

(1) The statement of Trevor Heatrick was amended on advice from ELC to include the following,

“The company permits employees to remove wood from the premises when authorisation is sought and obtained from the relevant personnel to do so. Payment is also required for any significant quantities of wood taken. On the occasion outlined above Alastair McLarnon removed a significant amount of wood without authorisation.”

“I believe Alastair should be invited to a disciplinary meeting at which the following allegation is put to him: That he on Thursday 22 August 2013 misappropriated property belonging the company”.

Both the draft statement and the final statement are dated 23 August 2013 although the proposed amendments were only emailed from ELC to the respondent on or about 29 August 2013.

(2) An email dated 19 December 2013 from Alison Clarke, the notetaker at the disciplinary, to Denise of ELC Consultancy, enclosing the minutes of the disciplinary meeting. That email continued, “Can you please provide an outcome/dismissal letter”. Mr Campbell suggested this showed that the outcome of the disciplinary had already been predetermined, although further interviews were carried out with employees after the disciplinary meeting in particular interviews with other staff on 14 January.

(3) When Ms Harrison sent a copy of the claimant’s appeal letter to ELC the subject line of the email was headed “Surprise, Surprise!!”. The body of the email read, “Please find attached letter of appeal from Alistair McLarnon. Hope you can make more sense of it than I can”.

(4) When Ms Harrison wrote to Paula Brady by email sending her information in relation to the background of the case, she said in the body of her email,

“Attached is info right from the start. Give me a ring if you want to discuss. Denise at ELC has also suggested that if you want to talk to her beforehand you can give her a call ...”

Mr Campbell suggested that there was a “secret channel” of communication between Ms Harrison and Ms Brady. This was denied by both of them. The only correspondence opened to us relates to the setting up of the appeal.

Ms Harrison indicated in an email to Ms Brady on 17 February, amongst other things,

“He [the claimant] got his letter on Friday as he wouldn’t give us a contact number to ring him on. No word back but I didn’t give him the opportunity to change it again, I just told him thats (sic) when it was. He is supposed to be sick anyway so should be available.

I spoke to ELC just to clarify and seemingly it is just to be you and Alison to take notes. I don’t have to attend unless requested by him (happy days!!) ...”

30. Mr Campbell suggested that Ms Harrison and Ms Brady were friends, and hinted that this meant that Ms Brady was not impartial in dealing with the appeal.

31. Ms Brady frankly agreed that she and Ms Harrison were “friends” on Facebook but given that people can have Facebook friends whom they have never met, we do not find this convincing evidence by itself that there was a personal relationship between the two. Ms Brady also confirmed that she and Ms Harrison had met by coincidence at Moira Game Fair but this was the only social occasion when she had met Ms Harrison outside of work.

32. On day of the appeal hearing Ms Brady confirmed that she had attended at the respondent’s offices. She indicated that the main office is where Ms Harrison works so when Ms Brady came in she spoke to Ms Harrison briefly. Before starting the meeting she indicated that the only discussion she had with Ms Harrison was to say that she was a bit apprehensive about conducting the meeting as she had not conducted an appeal meeting before. The appeal was conducted in another room and Ms Harrison was not present. Ms Brady stressed in her evidence that she was quite prepared, if appropriate, to overturn the disciplinary decision and that she was completely independent in her approach. As an independent consultant, her reputation for fairness was crucial to ensuring she got work.

33. It was suggested by the claimant’s representative that Ms Brady had failed in the appeal in that she had omitted to provide the claimant with documentation in relation to the sale of goods to other employees prior to the appeal, including receipts. Ms Brady accepted that she had not given that information to the claimant in advance of the appeal meeting nor had she sought it from Ms Harrison. However at the appeal meeting it does not appear that the claimant pursued this point and asked for the receipts involved. There was no evidence adduced at the tribunal to demonstrate that these receipts were not genuine, as we have noted at paragraph 26 above.

34. At the appeal, the claimant was accompanied by Gerard Toner again and notes were taken by Alison Clarke as at the disciplinary meeting. Ms Brady went through the points raised by the claimant. His case was that he had asked at the start of his employment if he could take wood and had then asked after the new owner took over and again after he returned from a period of sickness. He said that he had asked Anthony McAllister if it was ok to continue when the new owner took over and was told to go ahead. Ms Brady recorded that she had asked the claimant if he had sought permission on the day of the incident to which the claimant replied that when he had filled the bag Anthony “wasn’t about”. She put it to the claimant that according to the evidence she had reviewed, all the employees had stated that they knew to ask either Trevor or Anthony before removing wood from the premises. The claimant said that he didn’t know about anyone else and that he had asked Anthony. When he was asked if he had asked permission every time, Mr Toner commented that it was “common sense” to ask every time. When pressed on this point, the claimant indicated that he had asked twice, when the new owner took over and when he came back off sick leave. Ms Brady put it to the claimant that the quantity of what he took was not the issue, it was taking the wood without permission which was a concern. She asked the claimant again if it was his understanding that permission was sought every time. Mr Toner said no, but he would have asked at all times. She put it to the claimant if he believed that he did not need to ask every time. The claimant agreed that this was the case and that he thought that he had “covered himself” by asking at the start. There was some further discussion about the other points raised by the claimant. The main point made by the claimant was that he believed he had permission to take wood and did not need to ask on an ongoing basis.

35. The appeal was turned down by Ms Brady by letter dated 24 March 2014. She set out in that letter the reasons for her decision. In her evidence to the tribunal she summarised her findings by saying,

“I considered everything that was said by the claimant and on his behalf. No new information had been presented by the claimant and I did not have to carry out any additional investigations. I did not uphold the claimant’s appeal as I did not believe the representations provided by the claimant and Gerard Toner were consistent. The information provided by other employees interviewed was consistent with that provided by Anthony McAllister and Trevor Heatrick. I did not accept that the claimant was not aware that he had to asked permission to take wood off site regardless of the quantity”.

She concluded that,

“In the circumstances I concluded that he had misappropriated company property. No other mitigating circumstances were presented to me”.

She indicated that she believed the claimant had been unable to produce a clear and unambiguous reason to overturn the decision. She indicated that she had considered the claimant’s past record of the company but due to the serious nature of the issue even his clean disciplinary record up to the date of the incident did not give sufficient cause to overturn the decision made.

36. The claimant had remained certified as sick throughout this period and was fit for work again from 8 July 2014. He had decided to build up his mechanic’s business, which he had previously run on a part-time basis, and had therefore become self-employed from July 2014.

37. The claimant also included a claim for failure to provide written terms and conditions of employment in his ET1 form. However, he did not lead any evidence on this point in his witness statement. On cross-examination, Mr O’Neill said that contracts had been issued to all employees when he ran the business, although the claimant disagreed with this. The respondent had issued staff with their company handbook after they took over the business, but this did not constitute revised terms and conditions of employment. Having considered the fact that the claimant failed to lead evidence on this issue and that Mr O’Neill clearly said contracts had been issued, we find that the claimant has not established on the balance of probabilities that he was not issued with terms and conditions of employment.

THE RELEVANT LAW

38. The relevant law in relation to unfair dismissal is to be found at Article 130 of the Employment Rights (Northern Ireland) Order 1996 and reads as follows:-

“Article 130 (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

(a) the reason (or if more than one, the principal reason) for the dismissal; and

(b) that it is either a reason following within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this paragraph if it -

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

(b) relates to the conduct of the employee;

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

39. In this case, the respondent conceded that the employee had been dismissed and it is therefore for the employer to show that the reason for the dismissal was a fair one, i.e. that it related to the conduct of the employee. It is then for the tribunal to consider whether the employer acted reasonably in treating the conduct alleged as sufficient reason for dismissal.

40. The relevant case law was summarised in the judgment of the Northern Ireland Court of Appeal in Dobbin v CityBus Ltd [2008] NICA 42 and quoted with approval by the same Court in Rogan v South Eastern Health and Social Care Trust [2009] NICA 47. They were referred to established case law in the cases of British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR which was further refined in the judgments of Lord Justice Mummery in Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden [2000] ICR 1283. The guidance set out in Iceland Frozen Foods is as follows:-

“(1) The starting point should always be the words of [Article 130] themselves;

(2) In applying the section an Industrial Tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair;

(3) In judging the reasonableness of the employer’s conduct an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4) In many, though not all, cases there is a band of reasonable responses to the employees’ conduct within which one employer might reasonably take one view, another quite reasonably take another;

(5) The function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band it is unfair.”

41. In British Home Stores v Burchell the position was summarised by Mr Justice Arnold as follows:-

“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly that the employer had in his mind reasonable grounds on which to sustain that belief. And thirdly, we think, that the employer at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in the circumstances of the case. … It is not relevant, as we think that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure”, as it is now more normally in the criminal context, or, to use the more old fashioned term, such as to put the matter “beyond reasonable doubt”. The test, and the test all the way through, is reasonableness; and certainly, as seems to us, a conclusion on the balance of probabilities will in any surmisable circumstances be a reasonable conclusion.”

42. While it is accepted that the civil standard was the appropriate standard of proof for a disciplinary panel, reference has also been made in more recent cases (including in cases before the House of Lords) of the need for more cogent evidence to overcome the unlikelihood of what is alleged if a serious allegation is made. In Rogan, the Court referred to the judgment of Lord Carswell in Re D [2008] UKHL 33 where he cited the judgment of Lord Justice Richards in R(N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA CIV 1605 where he said:-

“Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities”.

43. We have also taken into account the fact that, as the claimant emphasised, a disciplinary procedure should allow an opportunity for the claimant to improve his performance and the guidance given by the Labour Relations Agency in its Code of Practice on the Statutory Disciplinary and Dismissals Procedures.

44. We have considered carefully the case law and are aware that in many cases dismissals for a “first offence” (as in this case) may be considered too harsh a penalty. However, we note that the learned authors of Harvey indicate that dismissals for a first offence may be justified in three rather different circumstances:-

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

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

(3) Where the employee has made it clear that he is not prepared to alter his attitude so that a warning would not lead to any improvement.

45. We also note that in instances of theft or dishonesty a single act of misconduct may justify summary dismissal even though the amounts concerned were small but there was deliberate dishonesty (see McCrory v Magee t/a Heatwell Heating Systems [1983] IRLR 414).

REASONS AND DECISION

Unfair Dismissal

46. We have considered carefully the evidence which has been put before us in relation to this case. We are satisfied that there was a custom within O’Neill Contracts prior to being taken over by the respondent company that material which was effectively “scrap” could be removed by employees with permission from their employer. This was the policy as outlined by Mr O’Neill and Mr Putts in their evidence to the tribunal and the claimant was clear that he had asked permission, at least initially, from them. He also recognised that it was necessary to seek permission to remove goods from the respondent’s premises in that he checked the position after the respondent took over the business and again after he returned from a prolonged period of sick leave. He said it was his understanding that he was “covered” by an initial permission given to him by Anthony McAllister probably sometime in December 2012. What was not at all clear was whether or not he recognised that there was a policy that employees should ask permission each time they wished to take wood from the site. Both Mr Heatrick and Mr McAllister were clear in their understanding of the policy. It is also clear from the interviews carried out from Ms Boyd that other members of staff were clear about this policy as well. While Mr Campbell sought to discredit these statements by suggesting that they were suspiciously alike, we can accept that given that the questions asked were the same and the employees appear to have been clear as to the policy, it is likely that the answers would be similar.

47. There was also an inconsistency by the claimant in the way that he dealt with the matter on investigation, at disciplinary and the appeal. First of all he indicated that he had asked permission and gave the impression that he had asked for permission on the day of the alleged theft. Secondly, he then clarified that he had asked permission previously and believed that he was “covered” by this and finally when he was asked at the appeal about seeking permission again, he had indicated that Anthony was “not about” when he was gathering up wood to take off the site. This gave the impression that he would have asked Anthony McAllister had he been there. It was also clear that Mr Magowan (who was present at the investigatory meeting) and Mr Toner (who was the claimant’s accompanying colleague at the disciplinary meeting and the appeal meeting) both indicated that they always sought permission to take wood. While Mr Toner seems to have suggested at one point that permission was not strictly necessary, he then indicated that he always asked permission to keep himself right “because it made sense”.

48. On the balance of probabilities we are satisfied that there was a clear policy on the part of the respondent that any of the employees who wished to remove materials from the site had to seek permission on each occasion. While this was not a written policy, it is evident that every other employee was clear as to what the policy was. They were also aware that if goods were over a certain value, they may be asked to pay for them, which was the experience of at least two other employees. When the claimant queried this and suggested it was a change in policy from the previous owners, it was pointed out to him that if he had sought permission to remove goods, it was only at that stage that the question of payment may have arisen.

49. We are satisfied that there was a recognised and known policy on the part of the respondent that every employee should ask for permission to remove wood from the site. While the claimant alleged that he was “covered” by previous permission we are satisfied that he did not ask permission on the day. We are also satisfied on the balance of probabilities that he was well aware of the policy and that he knew that he should have asked permission. The claimant argued that this only became an issue in August 2013 because Mr Heatrick saw him on the site packing up the wood. He alleged in effect that Mr McAllister the site supervisor was aware that he was removing wood and did not make any issue about it. The claimant also suggested that Mr Heatrick had made an issue in relation to the removal of wood because he had other issues with the claimant’s work and specifically, the claimant argued that Mr Heatrick was unhappy that the claimant had raised a personal injury claim following his accident at work. There was nothing in the conversation that the claimant reported with Mr Heatrick to suggest that this suspicion had any foundation. Ms Rooney pointed us to correspondence which indicated that the claimant’s personal injury claim had in fact been settled by the third party insurers and that the respondent’s insurance had not been called upon at all in relation to this matter, so we accept that any concerns the claimant had in this respect were groundless.

50. We are also satisfied that if Mr Heatrick had any issue with the claimant’s work, that he raised it on the spot with the claimant on 22 August 2013 and there was no suggestion that there was any issue at that stage in relation to wood being removed from the premises. Following Mr Heatrick’s concern about the claimant having removed wood, he properly referred that issue to Ms Harrison who dealt with Human Resources issues.

51. In our view there is nothing sinister about the way that the matter was investigated, as the investigation by Gail Boyd fairly raised the issues with the claimant, allowed him the opportunity to view CCTV footage and allowed him an opportunity to state his response to the allegations against him. Subsequently Ms Boyd was involved in obtaining other statements from other employees regarding the policy on removing goods from the site and again that does not appear to have been in any way suspicious, apart from the fact that they were all asked the same questions, which is perhaps not unexpected in the circumstances.

52. As regards the disciplinary process, this was delayed for a number of months due to the claimant being on sick leave. While the respondent may have had some concerns about the nature of the claimant’s illness, there was a certain amount of leeway shown to him in relation to this matter. It was only in December (almost four months after the incident) that the respondent insisted that a disciplinary meeting needed to go ahead, and that if the claimant could not attend, it may proceed in his absence. At that stage the claimant was indeed able to attend the disciplinary meeting with his work colleague. The disciplinary meeting gave the claimant every opportunity to put forward his case, to answer the allegations against him and to put forward his own account of his behaviour. Mr Campbell suggested that Ms Harrison should have contacted Mr O’Neill to check on the policy applied by him when the business was owned by him and that she should have obtained a statement from Raymond Magowan. However Mr Magowan’s comments as recorded at the investigatory meeting were that the policy was that employees could remove items with permission, and there was nothing different in this to the policy applied by the respondent. It is difficult therefore to see how a statement from Mr Magowan would have added to or changed the overall situation. Ms Harrison noted Mr Magowan had suffered a heart attack, just after Christmas 2013 and had been off on sick leave from some time.

53. In relation to the appeal, Mr Campbell sought to suggest that the appeal process was tainted because there was a “secret channel” of communication between Ms Harrison and Paula Brady. There was however no evidence of this that we could see. While it is correct that there were some emails sent from Ms Harrison to Ms Brady with information in relation to the appeal, this was largely supplying her with information which should would need to conduct the appeal in the form of notes and statements and providing her with details in relation to the time and place of hearing. There was no evidence adduced to us which suggested that the procedure was in any way tainted by the fact that Ms Harrison and Ms Brady had previously had a professional involvement due to Ms Brady having carried out some consultancy work for the company. While we are concerned that some of Ms Harrison’s comments in emails were unprofessional and ill-advised, we are not satisfied that these tainted the process.

54. Quite commonly employers will ask a more senior manager to carry out an appeal after a disciplinary procedure. In this case the members of senior management were mostly members of the Heatrick family. Given that Trevor Heatrick had made the initial statement alleging misconduct by the claimant, it was appropriate that someone other than a member of the Heatrick family should carry out the disciplinary hearing and the appeal. In this case the company decided Ms Harrison would deal with the disciplinary and employed an independent consultant they had previously used on health and safety issues to deal with the appeal. Ms Brady was adamant in her evidence that she was completely independent and that she had made this clear to all parties involved. She noted that as a self-employed person her reputation was crucial in ensuring that she was engaged to carry out work for different companies. We accept that comment from her and we accept that she strove to ensure that the appeal was carried out in an independent manner.

55. In relation to the question of the memo which Ms Harrison had prepared showing her thinking in relation to the disciplinary, this had not been supplied by the claimant and Mr Campbell sought to suggest that this was detrimental to the claimant in presenting his case. However, having read this document, there is nothing in it which is not in the outcome letter sent to the claimant following the disciplinary procedure. Accordingly we are satisfied that the claimant had all the necessary information before him at the time when he lodged his appeal.

56. In relation to the receipts for sales of material to employees, having read these, we can see that there are three for firewood in 2012 and one for the day of the alleged disciplinary offence. All of these related to the employee named Waldemar. We cannot see that there is any evidence at all that these receipts were fabricated in any respect and we do not think that anything in those receipts would have changed the outcome of the disciplinary procedure.

57. Mr Campbell also complained about the fact that Ms Harrison had “pp’ed” the outcome letter in relation to the appeal. While this is unhelpful from the respondent’s point of view in relation to the “conspiracy theory” that Mr Campbell sought to promote, Ms Brady clearly explained to us that she had prepared and finalised the outcome letter in relation to the appeal. It would however clearly have been preferable for Ms Brady to sign that letter herself, especially since Ms Harrison had dealt with the disciplinary. We accept Mr Brady’s evidence that she was the author of the letter and there was no evidence adduced by the claimant to contradict that.

58. The overall question for us to consider is whether the procedure was fair and reasonable in all respects. Applying the test set out in the Burchell case referred to above and approved in Rogan v Belfast Health and Social Care Trust, we must consider whether all aspects of the investigation and procedure were reasonable in the circumstances of the case, and whether the employer’s actions in dismissing the employee were reasonable in all the circumstances.

59. We are satisfied that the employer had a reasonable belief that the claimant had dishonestly removed property from the site. There were reasonable grounds on which to sustain that belief, due to the evidence provided in the CCTV footage, and the interviews carried out at that stage, particularly with the claimant but also Mr Heatrick and Mr McAllister, who confirmed that the claimant had not sought permission to remove the wood.

60. We are also satisfied that the employer carried out as much investigation into the matter as was reasonable in the circumstances of the case. Not only did Ms Harrison interview the claimant at the disciplinary stage, but she also spoke again to Anthony McAllister and to Trevor Heatrick and directed that further interviews would be carried out with other employees to clarify their understanding of the respondent’s policy regarding removal of material from the site. It was only after further investigations had been carried out, that the respondent dismissed the claimant in early February 2014.

61. It was put to various witnesses by Mr Campbell that the value of the wood removed by the claimant was estimated to be £20.00 and that it was unreasonable for him to have been dismissed over such a small amount of money. As far as this is concerned we note the guidance given in Harvey which points out that dismissals for a “first offence” can be justified if the act of misconduct is so serious that dismissal is a reasonable sanction to impose notwithstanding the lack of any history of misconduct. The vast majority of employers categorise theft as gross misconduct, which may lead to dismissal.

62. In this case the policy of the respondent in relation to removal of goods by employees was well known. The claimant should have sought permission to remove the wood and did not do so. Initially the claimant seems to have been rather unconcerned, indeed almost aggressive that he was being questioned about removing the wood. His account of this matter was inconsistent but he did say on one occasion that Anthony “was not about” at the time. This rather suggests that the claimant was aware that he should have sought permission but failed to do so on that particular day. In our view the concerns which the respondent had in relation to this matter were justified.

63. The claimant was off work for a prolonged period of time from August through until December, and then again after the disciplinary hearing, and right up until the date of his dismissal after his appeal.

64. The claimant made the case that he was a long-serving employee with a clear disciplinary record in arguing that he should not have been dismissed. This is clearly something which should be taken into account and it appears certainly from Ms Brady’s statement and from Ms Harrison’s disciplinary letter that it was indeed taken into account.

65. We have reminded ourselves that we must not substitute our own view of the matter for that of the disciplinary panel at the time. Given the circumstances of this case, the claimant’s long-service record and his prolonged sick leave the previous year, we would have found it understandable if a lesser penalty had been applied in this particular case. However it is not our role to substitute our decision for that of the disciplinary authority. We have to acknowledge that the respondent carried out all reasonable steps in terms of conducting the disciplinary investigation, the disciplinary hearing and the appeal in a way which was both substantially and procedurally fair. The claimant was given every opportunity to make full representations on his own behalf and to be accompanied. For the reasons set out by Ms Harrison in the disciplinary outcome letter and by Ms Brady in the appeal outcome letter, they formed the view that the claimant had acted dishonestly and that he had not been entirely frank in his submissions at the investigation stage or at the disciplinary and the appeal hearings. Accordingly it is our finding that the claimant was not unfairly dismissed, and his claim in this regard is dismissed.

Failure to provide written terms and conditions

66. As set out at paragraph (37) above, the claimant has failed to prove his case in this regard and accordingly his claim is dismissed.

Employment Judge:

Date and place of hearing: 27, 28 and 29 October 2014, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McLarnon v R Heatrick Ltd [2014] NIIT 748_14IT (25 November 2014) URL: http://www.bailii.org/nie/cases/NIIT/2014/748_14IT.html Cite as: [2014] NIIT 748_14IT

Industrial Tribunals Northern Ireland Decisions