THE INDUSTRIAL TRIBUNALS

CASE REF:	1521/13

CLAIMANT:			Anthony Brophy

RESPONDENT:		Norbrook Laboratories Ltd

DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and accordingly the claimant’s claim is dismissed.

Constitution of Tribunal:
Employment Judge:	Employment Judge McCaffrey		
Members:			Mr H Stevenson
Mr P McKenna

Appearances:
The claimant was represented by Mr C Fegan, Barrister-at-Law, instructed by McNamee McDonnell Duffy Solicitors LLP.
The respondent was represented by Mr J Algazy, Barrister-at-Law, instructed by Mr G McGennity, in-house solicitor of the respondent.

Issues

1.	This was a claim of unfair dismissal brought by the claimant against the respondent.  The claimant denied that he had been guilty of gross misconduct and alleged that the investigation carried out by Sean Canavan, (Group Packaging Manager of the respondent) had been flawed on the basis that Mr Canavan was biased and had an interest in the outcome of the investigation.  It was also suggested that the outcome of the disciplinary procedure had been predetermined prior to the disciplinary procedure commencing.  The respondent disputed the claimant’s case.

Application to Amend

2.	After the conclusion of the evidence in relation to this case (see below) and before the commencement of the submissions, counsel for the claimant submitted that there were two main issues in this case.  First of all he indicated that he believed the disciplinary procedure had been unfair, because of the appointment of Sean Canavan the Group Packaging Manager as investigator.  He alleged that this constituted a breach of natural justice because Mr Canavan was in effect a judge in his own cause.  Secondly he asserted that a statement made by Mr Derek Rodgers, Operations Director of the respondent company, to the PSNI on 16 November 2012 had clearly implicated the claimant in the theft of products from the company and he asserted that therefore the dismissal of the claimant had been predetermined.  The claimant’s representative argued that the matters pleaded in the claimant’s ET1 covered both these points and were sufficient to allow the respondent to know exactly what case was made against them.  He asserted further that it was only through his cross-examination of Mr Canavan that it had become clear that he previously knew nothing of the police statement made by Mr Rodgers and that he (Mr Canavan) had not formed any view on who was likely to have been responsible for the theft from the respondent’s premises until after he had seen photographs of the stolen products taken by Mr Rodgers on the day when he (Mr Rodgers) gave a statement to the police.

3.	Mr Algazy objected, arguing that he had been taken by surprise and that it was far too late to make any amendment to the proceedings to cover either of these matters.  He suggested that neither of these matters had been pleaded by the claimant in his ET1 form and while he conceded that the claimant had raised the issue of Mr Canavan’s involvement at his appeal and in his statement, at no point had the claimant made the case that this issue had been predetermined.  He argued that he would have called other witnesses had he been aware that this case had been made and that the respondent would be prejudiced by any amendment being allowed at this stage.

4.	We considered this matter and gave a ruling in relation to it.  On the issue of whether Mr Canavan was an inappropriate person to deal with the investigation against the claimant, we believe this matter was sufficiently covered in the claim form and further that it was raised by the claimant at his appeal and in his witness statement.  We believe therefore that the respondent was sufficiently on notice to deal with this issue at the hearing and indeed had done so.  

5.	On the issue of Mr Rodgers’ police statement and his influence on the investigatory process, this was not pleaded by the claimant in his claim form and was not raised by him at any point in the disciplinary procedures.  The question was therefore whether the tribunal should allow the amendment at this stage.  We appreciate that the amendment sought would not change the claim, which is one of unfair dismissal.  However, it would change the grounds of the claim significantly.

6.	We were advised that the claimant’s representative received a copy of Mr Rodgers’ police statement on 3 June 2014, almost a month before the hearing.  Given the clear content of that statement, suggesting that the claimant was the person “most likely to be in a position to obtain these products and remove them from the factory unlawfully”, the claimant’s representative was on notice of the content of that statement and could easily have made an application to amend the claim prior to the commencement of the hearing.  The claimant’s representative did not do so at any point up until the end of the evidence at which stage they made an application to amend, the specific terms of which had not been given to us and so were not clear.  

7.	It was our finding that it was too late for the claimant to make this application at this stage.  We did not agree that the matter had only emerged in the course of the evidence on the previous day.  The claimant knew when he was questioned by the police in February 2013 that it was on the basis of allegations made by Mr Rodgers and he referred to this in his statement to the tribunal.  He was later subjected to an investigation and disciplinary process by the respondent in May 2013, in which Mr Rodgers was not involved.  In broad terms, therefore, any allegation the claimant wished to make that the issue had been predetermined could have been made by him at the latest by 3 June 2014, when he received Mr Rogan’s statement.  We accept that the claimant delayed in making this application and we believe that it would be prejudicial to the respondent to include this issue at this late stage, particularly as they have not had the opportunity to call witnesses to deal with this specific issue.  In all the circumstances and taking account of the guidance given by Lord Justice Mummery in Selkent Bus Company –v- Moore [1996] IRLR661 we refused the application to amend the proceedings.

Facts

8.	We heard evidence from a number of witnesses in relation to this case and had a number of documents open to us by both the claimant and the respondent.  On behalf of the respondent we heard from the following witnesses:-

			1.	Sean Canavan, Group Packaging Manager
			2.	Gareth McConville, Human Resources Executive
			3.	Martin Logan, Assistant Operations Director
			4.	Ruth Smyth, Deputy Head of Personnel
5.	Sean O’Hara, Senior Project Manager
6.	Amy McLellan, Human Resources Officer

9.	We also heard evidence from the claimant on his own behalf.  It is relevant at this point to note that while the claimant’s representative had the opportunity to cross-examine all the respondent’s witnesses, he chose only to cross-examine Mr Canavan and Mr Logan and therefore we have accepted the witness statements of the other witnesses for the respondent as unchallenged.

10.	At the outset of the case, Mr Fegan for the claimant made us aware that the crux of the claimant’s case was that Mr Canavan was conflicted in that he had an interest in the outcome of the investigation against the claimant and was effectively a judge in his own cause.  This is set out in some detail in the claimant’s witness statement including a reference to the appropriate Latin maxim.  	Accordingly, we set out the facts in relation to the case in general terms as they are not disputed and focus mainly on the issues raised by the claimant in relation to the alleged conflict of interest by Mr Canavan.  

11.	The claimant was employed as an Assistant Packaging Manager by the respondent at its premises at Carnbane, Newry.  He had initially been employed by the respondent as a security guard from December 2004 but had worked his way up to the position of Assistant Packaging Department Manager from November 2010.  Prior to the incidents which led to his dismissal he had a clear disciplinary record and appeared to have got on well at work.

12.	In August 2012 Mr Derek Rodgers, the respondent’s Operations Director, received a phone call from a local farmer who had contacted him to advise that he had brought Norbrook products from someone selling them “from the back of his car”.  On the basis of information regarding various batch records, Mr Rodgers reported this to the PSNI and also contacted Mr Canavan to start an investigation.  At the point when the investigation began the product had not been recovered and no photographs had been seen of it.  Mr Canavan’s evidence was that it was only when the PSNI recovered stolen Norbrook products and Mr Rodgers inspected them at the police station that Mr Rodgers took some photos of the stolen items and showed them to him.  His witness statement says that he saw the photos “4 or 5 weeks or more” after first being informed about the issue in August 2012.  In cross-examination he indicated that he had probably seen the photos at the end of November 2012.  On the basis that Mr Rodgers had taken the photos on the day he gave his statement to the police, namely 16 November 2012, Mr Fegan subsequently invited us to infer that Mr Rodgers had predetermined the claimant’s dismissal, in that his statement was given to the police before Mr Canavan completed his investigation.  Mr Canavan was not cross-examined on this issue by the claimant’s representative.  When Mr Canavan subsequently saw the photographs of the product he was content that the products looked like genuine Norbrook products in genuine Norbrook packaging and that they were not damaged in any way.  He indicated however that some of the labels did not appear to be in the usual type, size and setting used for labels.  This led him to be concerned that the products had been stolen as unlabelled products and the labels also stolen and printed separately.  His evidence was that unlabelled product was stored in the Work in Progress (WIP) area of Norbrook, Carnbane, until it was required to fill an order.  There were no cameras operating in the WIP area prior to this issue arising so it was difficult for him to ascertain exact movements of staff in that area.  He was however able to ascertain that the labels had been printed on a thermal transfer printer of which there were two on the site, one in the Logistics Office, which is a separate office just off the main packaging floor and the other in Suite 7, which is a manufacturing area.  On this basis he believed that the labelling was a key issue to identifying who could have stolen the product with the incorrectly printed label.  There were four people who had password access to the computer which controlled the printer in Suite 7.  These people were however discounted because although they had password access to the thermal transfer printer, they had no access to the labels or to the information needed to print the labels nor did they have any reason to be in the WIP area and so would have been noticed.

13.	Mr Canavan felt it was much more important to focus on who had password access to the thermal transfer printer in the Logistics Office.  There were four employees who had such access, namely Emma Cassidy, a line leader, Seana Jones in Logistics, Tommy Rodgers, an Assistant Packaging Manager and the claimant.  Mr Canavan considered the requisite knowledge and access which each individual had.  He discounted Emma Cassidy on the basis firstly, that she did not have a good understanding in his view of Norbrook’s working procedures within the department.  Secondly, if she was away from the packaging line for any period of time the line would stop and this would have been noticed.  He also considered that she would have limited understanding of Norbrook reconciliation procedures and the procedures to determine correct codes of labels being removed.  She would usually only be in the Logistics Office and working the transfer printer if the main person there (Seana Jones) was absent or sick.  He therefore discounted Emma Cassidy from his consideration.  As far as Seana Jones was concerned, she usually worked a shift pattern of 6.00am to 5.30pm.  She had password access to the computer and usually printed the labels.  However, in Mr Canavan’s view she did not have a good understanding of working procedures within the department and had a limited understanding of Norbrook reconciliation procedures and procedures to determine correct codes of labels.  He therefore discounted Ms Jones as well.  The third suspect was Tommy Rodgers who normally worked a 6.00am to 2.00pm shift.  He was also a key holder of the Logistics Office and had a password which would allow him access to the computer printing labels.  He would normally only do this work if Seana Jones was absent.  He always worked a day shift and in Mr Canavan’s view he would normally have been in the presence of other managers and staff members.  It would always have been daylight at the time when he was present at work and there would have been a heavy presence of other staff around.  He also parked in the front car park and given these factors Mr Canavan felt that Mr Rodgers’ opportunity to be alone in the Logistics Office or in the Work in Progress or warehouse area to remove product without being noticed, was nonexistent.  

14.	The other person who had access to the Logistics Office and a password which would allow him to access the computer was the claimant.  The claimant usually worked a shift pattern of 6.00pm to 2.00am or 10.00pm to 6.00am.  After 6.00pm he was the main person in charge of the area.  He was able to move freely without being questioned, including to the Labels Store and the Work in Progress area and accordingly Mr Canavan formed the view that the claimant had the opportunity to remove labels and remove vials from the trays without being questioned.  Also, given the fact that the claimant worked at night, he believed that the claimant had the opportunity to go to the Logistics Office and print off labels without anyone else being about.  He believed that because of the claimant’s experience he would have been aware how to determine product manufacture and expiry date from batch details and could manipulate figures relating to vials held in the Work in Progress store prior to reaching the packaging lines.  The other factor which was relevant was that the claimant normally parked his car at the side entrance of the FGS warehouse directly opposite the fire exit door.  There were no lights in this area and the claimant did not park in a car parking space.  Mr Canavan was therefore of the view that it was possible for the claimant to access the FGS area and his car easily late at night as the FGS warehouse only worked until 10.00pm.  He also noted that a passing comment had been made to him that the waste bins in the Logistics Office had been emptied overnight which seemed strange as there were no cleaners who worked after 2.00pm.  No action was taken by the respondent at this time as it was understood a police investigation was still ongoing.  

15.	The claimant was approached one day in the autumn of 2012 by Mr Rodgers and Professor James Haughey.  The claimant’s account of this was that they had accused him of theft.  Mr Canavan (who was not present at this conversation) said he understood that they had asked the claimant whether he knew anything about a product being stolen.  Mr Canavan denied that he had had any conversation with the claimant about this at the time but said the claimant had walked past his office and said, “I suppose you are in on this too”.  At Mr Rodgers’ request the claimant was moved to work day shifts in the station works packing area with effect from 3 December 2012.  

16.	In February 2013 the claimant was questioned by the PSNI in relation to the theft of stock from the respondent.  He denied the allegations made against him and was advised by the police that he was being interviewed on the basis of the statement provided by Mr Rodgers.  The claimant continued at work as normal and subsequently received a letter from the Public Prosecution Service dated 24 April 2013, indicating that they had decided not to prosecute him at that time.  

17.	Subsequently the claimant was invited to an investigatory meeting on 31 May 2013.  That meeting was conducted by Sean Canavan and Gareth McConville.  At that meeting he was questioned in relation to his knowledge of procedures within the Packaging Department, access to a thermal printer and various other matters.  He was also asked if he had ever sold Norbrook products to any person outside of work or had removed Norbrook products off site, which he denied.  Mr Canavan put to the claimant that he had never spoken to Mr Canavan about being questioned by the police, to which the claimant replied, “Sure the company knew”.  Mr Canavan was made aware on 28 May that the police did not intend to prosecute the claimant, although they were proceeding with prosecutions (for handling stolen goods) against two other individuals.  Mr Canavan then completed a written report relating to his internal investigation, which recommended taking the claimant to an Investigation Hearing under the disciplinary procedure.  Mr Canavan set out in that report the matters we have summarised at paragraphs 12-15 above.  He also noted that he found it strange that the claimant had never discussed with him (as his line manager) that he had been questioned internally or by the police about the stolen company products, or tried to defend his position.  Mr Canavan also said to the claimant that if there was an issue at work, the claimant was the first to defend himself or his staff, yet he had not mentioned something as serious as an allegation of theft.  The claimant’s response was, “What do you want me to say as I thought you were aware of it?”       

18.	At the end of that meeting the claimant was suspended on full pay and the matter was referred for a disciplinary hearing.  The claimant received a letter dated 4 June 2014, advising him that the formal disciplinary procedure was being applied to him.  He was invited to a disciplinary hearing on 5 June 2014 at which he was entitled to be accompanied, but chose not to be.  He was informed the following allegations were being considered:-

1.	misconduct involving dishonesty (eg theft);

2.	whether there was a serious breach of confidence in him;

3.	whether he deliberately provided inaccurate information to management;

4.	whether there had been a serious misuse of company property and the company name. 

19.	The claimant was provided with a copy of the minutes of the investigatory meeting which he had had with Mr Canavan and a copy of his investigation summary.  He was also referred to the company employee handbook in relation to the disciplinary procedure.

20.	On 5 June 2013 the claimant attended a disciplinary hearing conducted by Mr Martin Logan, the Assistant Operations Director.  Ruth Smyth and Mary Cleary were in attendance at that meeting, Ms Cleary’s role was as note-taker.  That disciplinary meeting went through the various disciplinary charges brought against the claimant.  He was made aware that all of these matters were gross conduct and could be grounds for dismissal.  Mr Logan’s evidence was that he had a discussion with Mr Canavan about his thinking in relation to the matter in advance of the disciplinary meeting.  His main concern related to where the claimant parked his car and whether or not he had the opportunity to take product to the car without being noticed.  Mr Logan’s evidence was that he did not feel that Mr Canavan’s investigation confirmed that the claimant had consistently parked in the rear car park.  It was Mr Logan’s view that where the claimant parked his car was significant.  His experience was that most staff parked as close to the clocking-in point as possible.  He indicated that as the claimant worked evening shifts whenever fewer people were in, he should have been able to park in the main car park relatively easily but chose not to do so.  The claimant’s evidence was that this was habit more than anything else.  He also indicated that he usually moved his car later on and when Mr Logan queried why, the claimant said that he would check whether people were having a smoke break and it gave him a chance to check the top car park.  Mr Logan did not find this a plausible explanation.  It was put to Mr Logan in cross-examination that by the time he became involved in the procedure, Mr Canavan’s theory had been established and that he (Mr Logan) had “bought into it”.  His response was that he accepted Mr Canavan’s theory on the basis of the photographs and evidence before him.  He noted the further steps he had taken in questioning the claimant about where he parked.  It was put to him that there could be competing theories about how the product was stolen, and Mr Logan’s reply was that he believed there were competing theories at the start.  Once photographs of the stolen product were seen, this limited the potential for how the product was stolen.  In Mr Logan’s view, there was a limit on the number of people who had access to printers and the vials of products; from there, there was only one person who had the level of access necessary to remove the products namely the claimant.         

21.	Mr Logan wrote to the claimant on 6 June 2013 to advise him of his decision to dismiss the claimant for gross misconduct.  The relevant extracts from his letter are as follows:-

		“While I accept that there is no “smoking gun” which definitively proves your guilt, on the balance of probability the evidence I have looked at does clearly indicate you as the only person who had had the opportunity to steal the product and label it.  ...

		On the basis that the evidence points to you, on the balance of probabilities I conclude that you did steal products from the company and that you have therefore committed the following acts of gross misconduct in that:-

(a)	there was misconduct involving dishonesty: e.g. theft – you stole from the company;

(b)	there is a serious breach of confidence in you: the action of theft creates a serious breach of confidence and has also resulted in Norbrook’s manufactured products being removed from the company and sold illegally;

(c)	you deliberately provided inaccurate information to management during the investigation meeting and disciplinary hearing:  aside from your denial of the allegations, I do not accept as plausible the reason you gave for parking your car in an area of the car park that was hidden from general view, nor do I accept as plausible the reason you give for moving it during your shift; and

(d)	you have been involved in a serious misuse of company property and the company name in that:  by providing Norbrook manufactured product to be sold illegally you are using company property and the company name in an unauthorised way and in a way that is harmful to the company.

“Even if I have not concluded that you committed acts of gross misconduct (as referred to above) in the light of the evidence there is a genuine, justifiable and substantial loss of trust and confidence in you, resulting in the employment relationship with you breaking down irretrievably, becoming untenable and impossible to continue. ...”

22.	The claimant was advised of his right to appeal which he decided to exercise.  In his letter of appeal, dated 10 June 2013, the claimant set out his shock that he was being accused of theft.  He indicated that in his view any one of the 160 employees in the factory could have had access to the Logistics Office where the thermal transfer printer was housed.  He also raised the question of the parking of his car which he suggested was irrelevant to the decision, noting that he often gave colleagues a lift home.  He denied that he had provided inaccurate information to management during the investigation.  He argued that he had been a victim of procedural and investigatory irregularities.  He alleged that there was total absence of any evidence proving that he committed any act of gross misconduct and indicated that he wished to pursue an appeal.

23.	On 17 June 2013 the appeal was heard by Sean O’Hara, Senior Projects Manager, and Stephen Teer, Artworks Manager, with a Human Resources representative available to take notes.  Mr O’Hara and Mr Teer were provided with details of the investigation to date, minutes of the investigation meeting and minutes of the disciplinary meeting together with the outcome letter, the appeal letter and the relevant LRA Codes of Practice in relation to discipline and grievance.

24.	Mr O’Hara’s evidence was that he and Mr Teer had gone through the paperwork and in particular the claimant’s letter of appeal to identify the issues being raised by the claimant and to see what matters they needed to consider.  His evidence to the tribunal was that they approached the appeal hearing as a review of the decision made by Mr Logan and where specific issues were identified by the claimant, they decided they would conduct such further inquiries as they considered necessary.  Minutes of the meeting (as with the investigatory and disciplinary meeting) were provided to the tribunal.  The claimant acknowledged that he could see logic in how Mr Canavan and Mr Logan came to the conclusion that he had an opportunity to steal product and labels but he denied that the parking of his car was relevant in terms of the alleged opportunity to steal.  He also noted that he gave lifts to other employees who had access to the boot of his car (as evidence that he was unlikely or unable to remove product by car) and he maintained there was one computer which was not password protected.  He disputed Mr Canavan’s recollection of their discussion after Derek Rodgers and Professor Haughey spoke to him.  

25.	As a result of this hearing Mr O’Hara and Mr Teer decided that they would speak to Sean Canavan, Martin Logan and various people the claimant had mentioned.  Mr O’Hara and Mr Teer interviewed Seana Jones, Louise Black and Mr Anderson who travelled with the claimant occasionally.  However, only Mr Anderson travelled with the claimant as far as Newtownhamilton because they were neighbours.  The others were dropped off on the outskirts of Newry.  Although Mr Anderson sometimes had fishing gear with him, he said he did not put it in the boot of the car and the other staff had no occasion to look in the boot of the claimant’s car.  Norbrook’s IT manager, Martin McKavanagh e-mailed Mr O’Hara to confirm that the two desktop PCs in the Logistics Office required a password to log on and had an automatic screen saver “time out” requiring password authentication which had been in place for the past two to three years at least, which indicated the claimant’s assertion about passwords was not correct.  They had a discussion with Martin Logan regarding his thinking and noted that he was adamant, in the light of the claimant’s attitude throughout the whole process, that there was a genuine justifiable and substantial loss of trust in him.  The outcome of the appeal was that the decision to dismiss the claimant was upheld.  

26.	The claimant did not attack the evidence given by Mr O’Hara or challenge it in any way.  Nor did he challenge Mr Logan’s finding by suggesting that the claimant had argued at the dismissal stage that Mr Canavan’s investigation was flawed because he had an interest in the outcome.  At the appeal stage, the claimant did ask who had investigated Sean Canavan, although he was also clear in his view that he felt it was very unlikely that Mr Canavan had been involved in any theft.  It was not put to Mr Logan nor Mr O’Hara that the outcome of the disciplinary meeting and appeal had been predetermined in any way.  The only evidence which we have in relation to this matter comes from Mr Logan’s statement which indicates that he had a general discussion with Sean Canavan and Derek Rodgers when he said that he thought it would be difficult to steal product from the factory, although he had seen the photos of the stolen products which Mr Rodgers had taken on his phone.  He said he was aware of the investigation in relation to the theft but had no involvement with the investigation until he was asked to conduct the disciplinary meeting.

27.	Following his dismissal the claimant was out of work for a period and subsequently started work for John McCreesh Plant Hire on a temporary basis in October 2013.  That work lasted until 21 March 2014 and he was subsequently re-employed by the same employer two weeks later on a temporary basis.  His pay in that job is £320 per week gross, £271.88 nett.  

THE RELEVANT LAW

Unfair Dismissal

28.	The relevant law in relation to unfair dismissal is to be found in Articles 126 and following of the Employment Rights (Northern Ireland) Order 1996 (as amended).  In particular in this case we refer to Article 130 which provides as follows:-

		“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 falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

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

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

				(b)	relates to the conduct of the employee 

				(ba)	is the retirement of the employee; 

				(c) 	is that the employee was redundant or;

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

			(3)	(a)	In any case where the employer has fulfilled the requirements of paragraph (1) by showing that the reason (or the principal reason) for the dismissal is retirement of the employee, the question whether the dismissal is fair or unfair shall be determined in accordance with Article 130ZG.

			(4)	In any other case 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 of the administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employer, and 

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

29.	The representative for the respondent referred us to a number of authorities in relation to this matter.  The leading authority in Northern Ireland is the case of Patrick Joseph Rogan  v  South Eastern Health and Social Care Trust [2009] NICA 47.  Like the present case, that case related to a case of alleged misconduct on the part of the claimant for which he was subsequently dismissed for gross misconduct.  The provisions of Article 130 make it plain that the burden of proof is on the employer to establish the reason for the dismissal and in this case to demonstrate that it was a reason relating to the conduct of the employee.  If the employer successfully does so then the tribunal applies its judgment to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal. 

30.	In Rogan, the Court of Appeal considered the case law and in particular the previous decision of the Northern Ireland Court of Appeal in Dobbin  v  City Bus Limited where they approved the decisions of the Court of Appeal of England and Wales in British Home Stores  v  Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd  v  Jones [1980] ICR 17 as refined and explained in the judgments of Lord Justice Mummery LJ in Foley  v  Post Office and HSBC Bank plc (formerly Midland Bank plc)  v  Madden [2000] ICR 1283 and Sainsbury’s Supermarkets Ltd  v  Hitt [2003] ICR 111.

31.	The nub of the test which must be applied in such cases is to consider whether an employer has met a three stage test as stated by Arnold J in British Home Stores:-

		“First of all there must be established by the employer the fact of that belief (i.e. the belief in the misconduct); 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 all the circumstances of the case.  It is the employer who manages to discharge the onus of demonstrating those two matters, we think, who must not be examined further.  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 on the basis of being “sure” as it is now said more normally in a criminal context, or, to use the 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 it seems to us, the conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”  

32.	The Court in Rogan cited further with approval the opinion of Lord Carswell in Re D [2008] UKHL 33 where it is noted that the more serious the allegation, the greater the need for more cogent evidence to overcome the unlikelihood of what is alleged.  While bearing in mind that the standard of proof required in a civil case was finite and unvarying, Lord Carswell indicated that there may be situations which make heightened examination necessary, for example, given the seriousness of the allegation to be proved or in some cases the consequences which could flow from acceptance of proof of the relevant fact.  This approach has been endorsed recently by Lord Justice Elias in his detailed judgment in the case of Turner  v  East Midland Trains Ltd [2012] EWCA Civ 1470.  At the start of his judgment Lord Justice Elias restated the established principle, that an employment tribunal has to determine whether an employer has acted fairly within the meaning of the English equivalent of Article 130 of the Employment Rights (Northern Ireland) Order 1996 by applying what is colloquially known as the “band of reasonable responses” test.  He repeated that it was not for the tribunal to substitute its own view for that of a reasonable employer.  He made two important observations about the test.  The first was that it must not be confused with the classic Wednesbury test whereby a court can interfere with a substantive decision of an administrator only if it is perverse.  The second observation is that it is relevant to have regard to the nature and consequences of the allegations which are all part of the circumstances of the case.  He referred to his judgment in A  v  B [2003] IRLR 405 where he said,  “Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers.  Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquires should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him”.  It was also noted in Sainsbury’s Supermarkets Ltd  v  Hitt [2003] IRLR 23 by the Court of Appeal in England and Wales that the “band of reasonable responses” test does not simply apply to whether the sanction of dismissal was permissible.  It bears on all aspects of the dismissal process including whether the pre-dismissal investigation was fair and appropriate.

33.	The case put forward by the claimant in this case was that the investigating officer, Mr Canavan, suffered from a conflict of interest in carrying out the investigation.  The case put forward on behalf of the claimant by his counsel, Mr Fegan, was that the appointment of Mr Canavan as the investigating officer was contrary to the rules of natural justice, in that he was effectively a judge in his own cause.  He argued first of all that Mr Canavan had a vested outcome in the investigation.  While he did not actually contend that Mr Canavan was the guilty party in relation to the theft of product from the employer, he did assert that Mr Canavan had an interest in finding someone to blame for the theft.  It was his assertion that the respondent company was a “tight ship” and if Mr Canavan did not find the culprit, his job would be on the line.  This was denied by Mr Canavan in cross-examination, and there was no other evidence adduced that this was the case, apart from a reference to the respondent company being a “tight ship” by Mr Logan in his statement.  That was however in the context of ensuring that various individuals, including line leaders, did their job.  Mr Fegan also submitted that there was a major embarrassment factor for Mr Canavan in that shortcomings in his department were highlighted as part of the investigation.  Mr Canavan agreed that a number of steps had been taken after the incident to rectify procedures but he said that the source of the original problem was in the production department, in relation to checking the number of vials coming through the system at the production stage.  He agreed however that the introduction of templates, the introduction of further checks and CCTV cameras had improved the position at the packaging stage.  He completely refuted the idea that there was any embarrassment to him in the matter.  

34.	Secondly, Mr Fegan asserted that Mr Canavan was effectively the judge in this matter.  He asserted that because the outcome of his investigation was relied on heavily by Mr Logan and Mr O’Hara as the decision makers, Mr Canavan was in fact the decision maker in the case.  He also argued that it was not material to consider whether Mr Canavan did in fact influence proceedings, it was enough that he was there and in Mr Fegan’s word “conflicted”.  He asserted that it was unfair and invidious to require Mr Canavan to investigate his own department.  Indeed he suggested that if one applied the criterion that Mr Canavan applied in trying to identify the culprit, Mr Canavan himself would have been a suspect as well.  He asserted that the failure of the respondent to rule in or rule out Mr Canavan before appointing him as an investigator meant the process from the outset was flawed.  He referred us to Halsbury’s Laws of England (Vol. 61 (2010) 5th Edn.) and to comments on the rule against bias at paras 631 and following, which relate to decision making, both judicial and non-judicial.   

35.	Mr Fegan asserted that the rules of natural justice applied to the concept of a fair disciplinary process.  He referred us to Harvey Division D1 paragraph 488 where there is a quote from the decision of the EAT in Clarke –v- Civil Aviation Authority [1991] IRLR 412.  The EAT in that case set out general guidelines as to what a fair procedure requires.  The relevant paragraph provides:-

	“After due investigation and before reaching any final decision, a disciplinary hearing is obviously necessary as are any appeal hearings.  The practice at such hearings will follow the rules of natural justice, which are really matters of fairness and common sense.”

36.	There is considerable case law on the question as to what constitutes a fair procedure.  This is also set out in the Burchell case which we refer to above at para 31.  It is clear that any investigation should be carried out by a different person to the person taking the disciplinary decision and ideally a third person or group of people should carry out any appeal to avoid any impression of unfairness.  The quotation above seems to us to refer to “such hearings” as being disciplinary hearings and appeal hearings, rather than investigatory hearings.  Mr Fegan did not suggest that there were any flaws in the conduct of the disciplinary hearing and/or the appeal hearing.  He did not suggest that the claimant did not have the right to be accompanied, to which he is entitled by law, nor that the claimant was not given the opportunity to state his case and put forward any arguments he wished to.  The only basis on which the claimant’s representative challenged the entire procedure was on the basis that Mr Canavan’s investigation was flawed because of his personal interest in the outcome.

37.	Mr Algazy argued that Mr Fegan’s argument was misconceived.  He noted first of all that there were two reasons given by the employer for the dismissal, one being the claimant’s conduct and the other being “some other substantial reason”, namely that there had been a loss of trust and confidence in the claimant because of the respondent’s suspicion of the claimant’s dishonesty and because of the claimant’s conduct throughout the disciplinary procedure.  In that regard, the respondent relied on the decision of Ezsias –v- North Glamorgan NHS Trust [2011] IRLR 550, where the EAT found that an employer was entitled to rely on the fact that the relationship between staff including the claimant had broken down as a reason for dismissing the claimant, it was not necessary for the employer to go through disciplinary procedures to establish that it was the claimant’s conduct which had caused the breakdown.  Tribunals must however be alert to ensure that “some other substantial reason” is not used as a pretext for dismissal.  

38.	Mr Algazy asserted that the procedure followed by the respondent had been fair in all respects.  He also asserted that if there were any procedural deficiency, there was no doubt that the claimant would in any event have been dismissed and that therefore the dismissal was fair under Article 130A(2) of the 1996 Order.  

39.	He asserted that Mr Fegan’s arguments were entirely misplaced, arguing that the quotations Mr Fegan had referred us to from Halsbury’s Laws of England did not relate to private employers but related to courts and public bodies.  He also noted that the rules in relation to bias referred to all those who have the duty to act as adjudicators or judicially and that therefore this did not apply to Mr Canavan, whose role was as the investigator.  Those making the decision in relation to this case were Mr Logan who made the decision to dismiss and Messrs O’Hara and Teer who dealt with the appeal.  Mr Algazy noted that Mr O’Hara had not been cross-examined at all by the claimant’s representative and the cross-examination of Mr Logan had been confined mainly to the steps taken by Mr Logan in relation to the disciplinary.  

REASONS

40.	We have considered all the evidence which was put before us.  We have noted that Mr Fegan did not cross-examine Mr O’Hara at all in relation to his conduct at the appeal and his cross-examination of Mr Logan in relation to Mr Canavan’s role resulted in Mr Logan denying strongly that he had simply accepted Mr Canavan’s findings at face value.  We accept that both Mr Logan and Messrs O’Hara and Teer carried out the disciplinary procedure and the appeal procedure thoroughly, the claimant was given the proper opportunity to be heard and other inquiries and interviews were carried out at each stage.  

41.	The respondent has presented the case that they dismissed the claimant after a full investigation carried out by the manager of his department and a disciplinary hearing was convened by a manager from a different department with support from Human Resources.  Following that, an appeal was conducted by two other managers within the company again with support from Human Resources.  That appeal involved a consideration of the claimant’s appeal letter to identify the exact points he was making, a meeting with the claimant at which the various points were canvassed and then other individuals mentioned by the claimant were interviewed and further investigations carried out before a decision was issued.

42.	Mr Logan, in dealing with the disciplinary hearing, did have a discussion with Mr Canavan to try and clarify his thinking in relation to the investigation.  He then met the claimant and went through with him a number of matters on which he required clarification.  Principally Mr Logan said he was concerned that Mr Canavan had too readily accepted that the place where the claimant parked his car was a factor in him being able to steal product easily.  Mr Logan found that the claimant’s answers in relation to this matter were implausible and this, amongst other things, led to him formulating the view that the claimant had not been forthright in his answers at the disciplinary hearing, which contributed to his finding that there had been a breakdown in the relationship of the trust and confidence between the parties.

43.	We have to consider whether or not we are satisfied with the case made by Mr Fegan that Mr Canavan was in some way conflicted in carrying out the investigation in this matter.  We are not so satisfied.  We accept that as a matter of course, a manager who is familiar with the department will be well placed to carry out an investigation in relation to possible thefts from that department.  The claimant has never suggested that Mr Canavan himself was guilty of the theft.  Indeed, at the investigatory meetings he said it was unlikely, and that case was not seriously made by the claimant’s representative at the hearing.  In our opinion it would be normal to invite a manager of a department to carry out an investigation involving that department.  Mr Fegan asserted that Mr Canavan had a personal interest in the outcome.  We are not satisfied that he had any direct financial interest in the outcome and there was no evidence of this.  Mr Fegan also suggested that Mr Canavan would be vulnerable to disciplinary action if no one was identified as the culprit in the case.  Again there was no evidence in relation to this.  Mr Canavan flatly denied it, and that point was not put to any of the other witnesses.  As for the reformed procedures adopted in the packaging department, it seems to us natural and normal that an employer will use an investigation of this type to identify any weaknesses in their systems and to put these right.  

44.	The next issue is whether or not Mr Canavan was acting in an adjudicative capacity in his role as investigator and therefore whether the claimant’s assertions of bias on his part are relevant.  Mr Fegan asserted that although Mr Canavan’s role was as investigator he was “de facto” the decision maker.  We are conscious that in every disciplinary procedure which is properly carried out, there should be an initial investigation.  Unless that investigation makes a recommendation to proceed to disciplinary action, the matter will go no further.  This does not mean that the investigator has predetermined the outcome of the process by any means.  He or she will not, for example, have made any decision in relation to the outcome of the disciplinary action nor the penalty.  Mr Canavan did not make the decision to dismiss.  While Mr Logan certainly took Mr Canavan’s report into account, he carried out further steps of his own in his questioning of the claimant, and reached his own conclusion.  It did not automatically follow that the claimant would be dismissed due to Mr Canavan’s investigatory report.  

45.	For completeness, we should also deal with the assertion made by Mr Fegan, after the close of evidence, that the entire disciplinary process had been predetermined by Mr Rodgers’ statement to the police.  If we have had considered it appropriate to allow the amendment sought (which we did not, see paras 6 and 7 above), we would nevertheless have concluded that there was no evidence before us which would have led us to infer that the disciplinary process had been predetermined by Mr Rodgers’ statement.  First of all, there was no evidence to indicate that any of the other people involved in the process had seen the statement or were aware of its content and second, none of them was examined on the issue by the claimant’s representative (see paragraph 26 above).  

46.	We have considered the overall procedure which was applied by the respondent company in this matter.  We are satisfied that, in accordance with the test set out in British Home Stores –v- Burchell, and approved by the Northern Ireland Court of Appeal in Rogan, the employer had carried out as much investigation as was reasonable.  There was first of all Mr Canavan’s investigation and report in which he set out his thinking and his theory as to why it was more likely than not that the claimant had been the person responsible for the theft of product from the company’s premises.  These were not the only grounds for the decision to dismiss.  Mr Logan carried out a further element of investigation when he questioned the claimant as to why he parked his car in a particular location.  The location chosen by the claimant in Mr Logan’s view facilitated the claimant in removing product from the company’s premises without being seen, particularly as he worked the night shift when there were not many people about.  On top of this, at the appeal stage and partly at the claimant’s behest, Mr O’Hara and Mr Teer interviewed other individuals who had not been questioned by Mr Canavan or Mr Logan.  They made enquiries of the IT manager in relation to whether or not both computers in the Logistics room were password protected and confirmed that they were.  This reinforced their view that it could only be one of four people who committed the theft and affirmed the other conclusions reached that it was more than likely the claimant who had committed the theft.  

47.	We are satisfied that the employer had reasonable grounds on which to sustain their belief that it was likely that the claimant was the thief in this matter.  An employer in this situation does not have to have established the dishonesty involved beyond a reasonable doubt, as would be required in a criminal case.  It is the civil standard of proof – “the balance of probabilities” which applies.  On this basis we are satisfied that the employer had reasonable grounds on which to sustain their belief of the claimant’s guilt.  The next question to be considered is whether dismissal was reasonable in all the circumstances.

48.	In this situation, the respondent, in common with many employers, treated dishonesty as a matter of gross misconduct.  They also found that the claimant had been guilty of providing inaccurate information to management during the investigation and serious misuse of company property and the company name.  Mr Logan’s evidence was that he had considered the claimant’s employment record, length of service and previous disciplinary record and the fact that he had several promotions within the company.  His evidence was that nevertheless he could not overlook the fact that all the evidence pointed at the claimant being responsible for the theft of the stolen products.  He therefore dismissed the claimant on the basis of gross misconduct but he also set out that he felt that it was justified for the company to have a lack of confidence in him given the evidence of the claimant’s dishonesty, both in relation to the theft and the claimant’s behaviour at the investigation.  He believed that the claimant had deliberately provided inaccurate information to management during the disciplinary procedure.  He pointed in particular to the claimant’s explanation as to where he parked his car and Mr Logan’s opinion that this was simply implausible.  In all the circumstances, we believe that the decision taken by the employer in this matter falls within the band of “reasonable responses” to the misconduct involved.  We are conscious that we must not substitute our view for that of the disciplining body.  It is our job simply to decide whether or not the action taken was based on a reasonable belief following a reasonable investigation, and whether the sanction fell within the band of reasonable responses.  We are satisfied that it was.  Accordingly the claimant’s claim will be dismissed.       

Employment Judge:

Date and place of hearing:  30 June, 1 and 2 July 2014, Belfast.

Date decision recorded in register and issued to parties: