THE INDUSTRIAL TRIBUNALS

CASE REF:	170/15

CLAIMANT:			Bertie Johnston

RESPONDENT:		Northern Ireland Transport Holding Company
t/a Ulsterbus Limited

DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed but that he made a substantial contribution to his dismissal and accordingly the award in his favour will be reduced by 75%.  The matter will be reconvened for a hearing in relation to remedy.

Constitution of Tribunal:
Employment Judge:	Employment Judge McCaffrey
Members:			Miss M E Bailey
				Mrs T Madden

Appearances:
The claimant was represented by Mr O Friel, Barrister-at-Law, instructed by Donnelly & Kinder, Solicitors.
The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by Elliott Duffy Garrett, Solicitors.

Issues

1.	This was a claim of unfair dismissal by the claimant against the respondent in relation to his dismissal following incidents on 16 and 17 October 2014.  It was alleged that the claimant had been guilty of gross misconduct in his behaviour towards a vulnerable adult who worked with the respondent as a volunteer.  At the request of both parties, and in order to protect the vulnerable adult concerned, we refer to the volunteer throughout this decision as ‘AB’.

2.	The claimant alleged that he had been unfairly dismissed.  In particular, the issues that we had to consider were as follows:-

(1)	Did the respondent follow its own disciplinary policy and procedures in its handling of the allegations against the claimant?  

 (2)	Was the procedure which was followed unfair in any or all respects?

 (3)	Was the decision to dismiss the claimant substantively unfair?  

 (4)	If the dismissal was unfair, did the claimant nevertheless contribute to his dismissal by his conduct?

The respondent denied the claimant’s allegations and contended that the dismissal was fair in all respects.

The Facts

3.	We heard evidence and received witness statements from the claimant and from his trade union representative, Mr Joe Murphy.  On the respondent’s side, we heard evidence and received witness statements from the following witnesses:-

•	Linda Lough, Assistant Service Delivery Manager

•	Declan McGoran, Service Delivery Manager, who dealt with the investigation and disciplinary procedure along with Linda Lough

•	Brian Elliott, Head of Standards and Compliance, who dealt with the claimant’s appeal

•	Joanne Murray, who acted as HR adviser and note taker for Brian Elliott on the appeal

•	Kieran Doherty, General Manager - Bus Services – who dealt with the claimant’s second appeal

4.	There were a considerable number of documents opened to us in the course of the hearing.  On the basis of all the evidence heard, we made the following findings of relevant facts.

5.	The claimant was employed as a cleaner by the respondent company and he worked in this role at their depot at Great Victoria Street, Belfast.  He was employed by the respondent from 5 August 2002 until his dismissal on 5 November 2014 on charges of gross misconduct for bullying and harassing a colleague.

6.	The events which led to the claimant’s dismissal occurred on Thursday 16 and Friday 17 October 2014 and there was a dispute about what exactly had happened.  On Friday 17 October 2014, Ms Lough received a telephone call from Ms Prince, the employment officer at the Orchardville Society in relation to an incident which had occurred on Thursday 16 October 2014 involving AB.  AB had been placed with the respondent as a volunteer through the Orchardville Society (‘Orchardville’).  AB had started volunteering for the respondent one day per week in 2012 but liked it so much that he asked to increase this up to four days a week.  Once the incident was reported to her, Ms Lough arranged to speak to Ms Prince about the matter in more detail the following Monday.  She then spoke to Declan McGoran and they agreed they would start the investigation the following Monday.  It was explained to the tribunal, and we accept, that the usual procedure adopted by the respondent where there was a manager and deputy manager at the same location was that they would jointly carry out any investigation and disciplinary procedure.  Given that AB was a vulnerable adult, it was decided that Ms Lough would have an initial meeting with him, his mother and her representatives at Orchardville’s offices.  The gist of the allegation was that a man named George Johnston had come into the cleaner’s hut at lunchtime on Thursday 16 October 2014.  AB, Darren Burns, the claimant and Jim Campbell were there.  George Johnston had brought in an old gun to show to Darren Burns, who was interested in such memorabilia.  It was confirmed by Mr Johnston that the gun was not operational and that it was brought in by him after some discussions with Mr Burns about his interest in such items.  AB was asked if he had asked to hold the gun and he said that he had not.  He went on to say that as he held the gun the claimant took photographs and the claimant then said:-

		“I’ve the proof to get rid of you.”

AB then went on to say that Darren Burns took a photograph of AB holding the gun using his own (AB’s) phone.  AB could not remember if he had asked for the photograph to be taken, but he had handed Darren Burns his phone and set it up to take a picture.  AB’s account was that George Johnston then took the gun back and left.  As they were leaving the hut, AB said that the claimant again said:-

	“Finally we’ve got the proof to get rid of you,”

repeated this statement and did a dance as if to celebrate.  Later AB became very worried that he might get into trouble with the police and he might go to prison.  He said he spoke to Alan Guiney, one of his supervisors, and showed him the photo.  Mr Guiney asked:-

“Are you a terrorist?”

but AB thought that this was ‘a bit jokey’.  He then said that he spoke to Jimmy Barbour in the fuel bay and showed him the photo.  AB said that Mr Guiney then came down to the fuel bay and told him that the claimant was only joking.  Mr Barbour later recalled his discussion with AB and Mr Guiney as having been on Friday morning, rather than Thursday.

7.	The following day (Friday) AB alleged that he had walked into the cleaner’s hut at the start of his shift and that the claimant and a man named Martin Stead stood up and saluted him as the ‘brigade commander’.  He then said that the claimant had told a colleague named Feidhlam Mulhern that he had photos of AB holding the gun.  AB also said that the claimant had told Mr Stead that he had walked in on AB assembling a gun and that AB had threatened to shoot him.  AB said he replied by saying:-

		“You wish.”

The claimant then indicated that he was going to show everyone the photo.  AB said he did not speak to the claimant for the rest of the day but that there were a few jokey comments made by others.

8.	Following this, Ms Lough and Mr McGoran interviewed the other individuals who had been involved in these incidents, including the claimant, in the presence of their trade union representative, Darren Herron.  Mr Burns confirmed that he had been present and that Mr Johnston had brought in a gun at his request, as he took an interest in this type of memorabilia.  He indicated AB had asked to hold the gun and that he gave it to him.  Mr Burns also said that he had asked AB if he wanted a photo of the gun and he had then taken one using AB’s phone, after he had asked AB if his mother would be okay with this.  Mr Burns confirmed that no one else had taken a photograph and when he was asked if anything had been said he replied:-

		“Not that I am aware of.”

At one of the discussions Ms Lough had with AB and his family, AB’s mother noted that Mr Burns (‘Burnsy’) had been very supportive of AB at work.

9.	Mr Burns also added that AB could be difficult to work with and that he repeated things that he had overheard about other people.  When the claimant was asked about the incident on the Thursday, he confirmed that AB had asked Darren Burns to take a photograph for his mum and care workers and that AB had requested the picture be taken.  When asked if anyone else had taken photographs, the claimant replied:-

	“Not that I’m aware of.”

He was then asked if anything else had happened in relation to the gun and he indicated there was not.  He was also asked if the issue was re-visited at any time on Friday 17 October 2014 and the claimant replied:-

	“He hadn’t re-visited it.”

He stated that he had been in the hut on the Friday morning with Martin Stead when AB came in but indicated that nothing was said or done.

10.	Mr Stead was described by Ms Lough as being ‘very cagey’ from the outset of his interview.  Ms Lough’s impression was that she was ‘only getting part of the story’ from Mr Stead.  He said that the claimant had said to him on the Friday morning that:-

		“AB wanted a photo of it.”

When Ms Lough asked more about this, Mr Stead’s reply was that this was all the claimant had said, nothing else.  Ms Lough formed the impression that there had been an exchange between Mr Stead and the claimant prior to AB coming into the room.  When AB entered the hut, Mr Stead confirmed that both he and the claimant stood up and saluted.  It was suggested that this was some sort of spontaneous event.  The claimant initially denied that this had occurred and then when questioned about it again, he indicated that he had misunderstood Ms Lough’s request about whether the matter was ‘re-visited’ on Friday morning and that he assumed that she was talking about the gun.  The claimant eventually conceded, however, that he had stood and saluted AB but not that he had referred to him as ‘brigade commander’ or ‘brigadier commander’.  He also denied that he had said anything either to Mr Stead or anyone else suggesting that he had seen AB assembling a gun and threatening to shoot him with it.  This was also denied by Mr Stead.  

11.	Ms Lough and Mr McGoran also interviewed George Johnston in relation to the Thursday incident, as well as Darren Burns, both of whom they found to be direct and apologetic.  Mr Johnston confirmed that a photo of AB holding the gun had been taken by Darren Burns using AB’s phone.  He confirmed that Jim Campbell, who was also present, did not have his phone out, but he was not sure if either Darren Burns or the claimant had their phones out.  George Johnston also confirmed that AB seemed to want to hold the gun, that he was smiling and there was nothing sinister happening.  Mr Johnston was very apologetic about the matter and said he realised with hindsight that he should not have brought the gun in and he would not have dreamt of bringing it in if this was going to happen.  

12.	It is also relevant to note that both Mr Mulhern, who was questioned on the matter (but who had not been directly involved) and Mr Burns noted that AB on occasions carried stories which did not always exactly depict how an event had happened.  Ms Lough said that in discussions with the Orchardville staff she had been made aware that AB’s condition meant that he did not always process information or ‘filter’ information in the way that other people might.  

13.	Jim Campbell was also interviewed and confirmed that Darren Burns had taken a photograph of AB because AB had set his phone up for Darren Burns to take a picture.  He confirmed that he was not aware of anyone else taking photographs.  When Jim Barbour was interviewed he said that on the Friday (17 October 2014) he had been in the fuel bay and AB walked up to him, shook his hand and said it had been nice knowing him.  When Mr Barbour asked what was up, AB said that he was getting the sack and if he did anything wrong they were going to show Declan McGoran and get him sacked.  Mr Barbour confirmed that Alan Guiney, the cleaners’ supervisor, was also present.  When Mr Barbour asked AB what was wrong, AB showed him the photo on his phone and it was also shown to Alan Guiney.  Mr Barbour realised that AB was upset and that this was not a joke as far as he was concerned.  When he asked Mr Guiney what he thought, he said Mr Guiney replied:-

	“That it was only a bit of craic.”

The CCTV footage confirmed that AB, Mr Barbour and Mr Guiney were in close proximity on Friday morning.  Ms Lough noted that this corroborated what Jimmy Barbour and AB had said about this discussion taking place.  Mr Guiney initially denied any involvement in this conversation, but later agreed that he had been present, although not really listening to what AB had said.  

14.	Ms Lough had a further meeting at Orchardville with AB and his parents to try and clarify a few points.  Ms Lough and Mr McGoran decided that this meeting would be better carried out by Ms Lough on her own, so as not to add pressure to AB in the circumstances.  

15.	At the end of the investigation, Mr McGoran and Ms Lough decided to maintain precautionary suspensions in respect of the claimant and George Johnston but the suspensions which had been imposed in relation to Martin Stead and Darren Burns were lifted.  Mr McGoran formed the view that the claimant had been involved in harassment and/or intimidation, either by taking or threatening to have taken a photo in the cleaner’s hut on Thursday and that he led AB to believe that this would be used to ‘get rid of him’.  On the balance of probabilities, Mr McGoran also formed the view that the claimant had used the incident again on Friday 17 October regarding the ‘brigade commander’ comment and the salute which had been corroborated by Martin Stead.  He took the view that this had built upon AB’s fears and that it was serious, considering that AB was a vulnerable adult.  

16.	Following this, disciplinary meetings were carried out in relation to the claimant, Martin Stead, Darren Burns, Alan Guiney and George Johnston.  The claimant was sent a letter inviting him to a disciplinary meeting on 4 November 2014 to answer charges that:-

“On 16/10/14 and 17/10/14 you carried out an act of intimidation, serious case of bullying/harassment that could also bring the company into disrepute.”

The claimant was asked for his response to this charge which was categorised as gross misconduct, and replied:-

“I refute all of these allegations that was made about myself.  At no point did I harass or bully any fellow workers.”

17.	Prior to the claimant’s disciplinary hearing, Ms Lough and Mr McGoran met Joe Murphy, the claimant’s trade union representative on 31 October 2014, in advance of Martin Stead’s disciplinary hearing.  Mr McGoran explained his concerns about releasing AB’s statement.  This had not been provided to the claimant and the others involved in disciplinary proceedings for two reasons, first, that it was a statement by a vulnerable adult made in the presence of a social worker; and, secondly, because there had been a report in the Sunday World about the incident and Mr McGoran was concerned that there had been a “leak” to the newspapers.  While the report (which had appeared in the Sunday World between the investigation starting and the disciplinary meetings) was inaccurate and sensationalised, the concern from the respondent’s point of view was that information about the incident had clearly been leaked to the press and they were anxious to preserve confidentiality at this time.  Mr McGoran gave Mr Murphy, the trade union representative, the opportunity to read all of the investigatory notes at that point and to take any notes he wished, but it made it clear that he did not want the file to leave the building.  

18.	Mr Murphy’s evidence was that he had not seen the statement made by AB until the day of the disciplinary hearing when he asked for it and so there was a clear contradiction in relation to this matter.  On balance, we accept that Mr Murphy was provided with the file of notes to read when he attended Martin Stead’s disciplinary hearing on 31 October 2014.  While this was contrary to usual practice in that the employees would usually have been provided with witness statements under the respondent’s disciplinary procedure, the respondent’s argument was that there were specific concerns at this time which justified withholding the actual statements, although the content of the allegations against the claimant were clear.  The respondent’s disciplinary procedure provides as follows:-

“3.2(iv)	Following the investigation, if the matter is deemed serious enough to merit being dealt with through the final process, the employee will be advised of this and the nature of the offence in writing and will be provided with any materials which will be relied on within the formal process.  At this point he will be permitted to state his defence in writing and in so doing to advance any extenuating circumstances, or he may, if he so desires, be heard in person before the district manager or his deputy.  The district manager may choose to be accompanied at any disciplinary hearing by another member of management.

    (v)	At such hearings before the district manager, an employee:-

(1)	Will be permitted to identify and call witnesses who may make a written statement and who will be interviewed by the investigating manager(s).  No facility to cross-examine a witness will be available to the employee or his representative.  However any notes of witness interviews and witness statements will be made available to the employee or his representative in advance of any disciplinary hearing as outlined in (iv) above [our emphasis].

(2)	May be accompanied, if she/he so desires, by a representative of his trade union or by a fellow employee ... .”

The policy was therefore, complied with as long as the respondent “made available” the notes of interviews and witness statements to the claimant or his representative in advance of the disciplinary hearing.

19.	The policy also categorises various classes of misconduct following the usual descriptions of minor, major and gross misconduct.  In relation to harassment, minor cases of harassment are categorised as minor misconduct; major misconduct covers ‘more serious cases of harassment’; and gross misconduct includes ‘serious or persistent cases of harassment or bullying’.  

20.	The claimant was called to a disciplinary meeting on 4 November 2014.  He was accompanied by Darren Herron and Joe Murphy as his trade union representatives, and Mr McGoran and Ms Lough were both present.  At that meeting the allegations were put to the claimant that he had in effect been using the presence of the gun to intimidate AB, that these were ‘vicious threats’ and Ms Lough asked the claimant again about the ‘saluting’ incident on the Friday morning.  The claimant confirmed that he and Mr Stead had saluted AB, but denied anything else, such as calling AB ‘brigade commander’.  Mr McGoran also said to the claimant, in the course of that meeting, that they were looking at ‘the balance of probabilities and the full picture’.  The claimant completely denied the incident on 16 October 2014, saying that he had not taken any photographs, had not alluded to taking photographs and not done a celebratory dance.  At this point, Mr Murphy asked if they could have a copy of AB’s statement and Mr McGoran refused, explaining why he was uncomfortable in releasing the statement.  He confirmed, however, that he had informed them (the claimant and his representatives) of the contents and repeated AB’s allegations.

21.	The following day, following a review of the paperwork, Mr McGoran and Ms Lough met the claimant and his trade union representatives again.  Mr McGoran advised the claimant that they had found inconsistencies which were concerning between the claimant’s initial statement and his statements the previous day, AB’s statements and other staff members’ statements.  They had made the decision to dismiss the claimant summarily at that meeting.  The claimant’s trade union representatives challenged AB’s statements, suggesting that he would be capable of lying and again asking for a copy of the statement.  Mr McGoran indicated that he would ask HR in relation to the matter, so that they could prepare for the appeal.  The claimant’s trade union representative confirmed only they and the claimant would have access to it and it would not be made public.  At that meeting the trade union representatives also raised the issue that staff such as the claimant had not been trained in terms of how to relate to vulnerable adults in the workplace.

22.	Some of the other individuals involved in these incidents were also subjected to disciplinary action.  George Johnston, who had brought the gun into the work premises, was given a final written warning for 18 months, which he did not appeal.  Both Mr McGoran and Ms Lough took the view that George Johnston was remorseful about his actions and acknowledged from the outset he had done wrong.  It was also clear that no threat or intimidation had been carried out by him, so the final warning was considered appropriate.

23.	Darren Burns, who had taken the photographs of AB, was, in Ms Lough’s view, ‘upfront and honest’ about his part in the incident, and appeared to acknowledge a misjudgment on his part in asking to see the gun.  He was given a written warning for 12 months.  Alan Guiney was called in for a disciplinary meeting because of his role as supervisor and the fact that he had failed to report the incident.  Ms Lough said, on further consideration, she and Mr McGoran considered this was a training issue and so decided to impose a Performance Improvement Plan.  Martin Stead was also disciplined for taking part in the saluting of AB on Friday morning, which Ms Lough considered ‘offensive and intimidating’ but different from the allegation of making threats which was the finding in respect of the claimant.  He was given a final written warning, valid for 18 months.

24.	The claimant was advised of his right to appeal and indicated he would appeal.  The respondent has a facility for two potential appeals.  The first appeal was carried out by Brian Elliott.  Joanne Murray was appointed to provide him with HR support and she also took notes of meetings.  Mr Elliott’s evidence, which was not challenged, was that the decision was to be his and his alone.  He confirmed that he read the file, investigation notes and letters from previous stages and created a timeline to allow him to better understand the background to the matter.  The claimant was then invited to an appeal meeting on 19 November 2014.  He was accompanied by Darren Herron and Joe Murphy and Joanne Murray also attended.  At that meeting, Mr Murphy said they had had no access to notes from AB but that they had now received a copy of his statement.  The claimant and his representatives challenged a number of matters raised by the complainant, AB.  They expressed their concerns that AB’s account of events seemed to be preferred over the claimant’s and pointed out a number of inconsistencies in the statements.  Mr Murphy also raised the issue that Declan McGoran and Linda Lough had carried out both the investigation and the disciplinary procedures.  Mr Elliott summed up this meeting by stating that Mr Murphy indicated that if he thought of anything else he should let Mr Elliott know but their basic point was that the claimant could only have been dismissed on the basis of AB’s statement.  

25.	Mr Elliott had a concern following this meeting about the lack of witness statements provided to the claimant and the points raised by the claimant’s representatives.  He had a discussion with Michelle Hanley of the HR Department to discuss the issue.  Following that it was decided that it would be best to draw up a set of investigation notes relevant to the claimant.  These were drawn from all the other investigation statements and contained the points specifically relevant to the claimant.  Mr Elliott indicated that he wanted to ensure that he did not prejudice the claimant in any way and he provided all the relevant information to him.  He recalled that he had provided these notes to Joanne Murray so that she could check them and confirm that they covered all the relevant points.

26.	Having taken some advice on the matter, Mr Elliott provided Mr Murphy with the investigation notes and discussed the matter with him.  He left the investigation notes for Mr Murphy to collect on 5 December 2014.  He then arranged to meet him and the claimant the following week on 11 December 2014, having checked Mr Murphy had sufficient time to review the notes.  At that further meeting, Mr Elliott commented that the claimant and his trade union representatives did not have much in the way of further comment to make and the hearing was brief.  He also stated that he was surprised by Mr Murphy’s comment at this reconvened meeting that there ‘was nothing new’ in the notes than what they had seen before.  Mr Elliott noted that it was suggested effectively that he had wasted two weeks in compiling the investigatory notes.

27.	Mr Elliott then spent some time drafting an outcome letter, which stated that he had decided to uphold the decision to dismiss the claimant.  This letter addressed all the points which had been raised by the claimant at the appeal meeting and runs to three and a half pages.  Mr Elliott also stated in the letter, the following:-

“The general gist of [AB’s] statement is that you had bullied and threatened him with ‘dismissal’ over photographs of him being taken with a gun.  He alleged that you had done this over both Thursday and Friday.

From the statements it is clear that there is a level of ambiguity between AB’s versions of events and your’s.  Indeed the witnesses would tend to contradict AB’s version in a number of areas.  I have further analysed the witness statements with a view to understanding what happened in the cleaner’s hut on Thursday and Friday and in and around the cleaner’s section on these two days ...

Having considered the evidence, it is clear to me, despite previous assertions to the contrary by both Martin and yourself, that you had been discussing the issue of the gun prior to AB entering the cleaner’s hut.  I conclude this because Martin has admitted to a comment attributed to you to the effect ‘[AB] wanted a photo of it’.  This is to me represents an acknowledgement that you were having a discussion reference Thursday’s incidents prior to AB entering it on Friday.  This then also explains how a salute came to be performed by both of you.  That is, you had planned it in your discussion prior to [AB] entering.  I also believe this in turn lends credence to [AB’s] statement that you did address him as ‘brigadier commander’.”

28.	Mr Elliott also considered whether the time was too short to enable the conversation in relation to AB assembling a gun to take place and concluded that it was not.  He went on to consider the statements of other individuals concerned and noted that Jimmy Barbour had reported a discussion in the fuel bay with AB and Alan Guiney.  Mr Elliott indicated:-

“Crucially however this tends to support AB’s version of events.  Whilst I have also highlighted, in the bullet points above, issues relating to AB’s interviews, when I consider all of this as a whole I am led to conclude that:-

•	The substance of AB’s statement has, when it could be tested, stood up to scrutiny.

•	AB does not appear to have anything to gain from making up a story of harassment.  In fact he is no longer in a job which by all accounts, including your own, he seemed to enjoy.

I therefore find AB’s telling of events a more compelling and hence believable account and I conclude that you were harassing and bullying him.”

	Mr Elliott then addressed the issue raised by the trade union representative, that the same two people had dealt with the claimant’s investigation and his disciplinary and noted that there was nothing which required the two matters to be dealt with separately.  He added that there were two further levels of appeal afforded to the claimant.  As regards the issue of training for working with vulnerable adults he continued:-

“I would remind you that in this case the primary issue was one of harassment and bullying.  I am aware that you have had extra training in relation to harassment and our Dignity at Work Policy, along with a number of others, due to a previous incident(s).  You also admit to having had [AB] to a point where he previously actually threw a pen at you and that you are a ‘raker’.  Therefore despite having had no specific training in relation to vulnerable adults you could have and should have known the effect you were having on him ... 

You have not at any stage admitted to anything except when it has been uncovered and discovered by the investigation and disciplinary process.  I therefore conclude that the tariff issued by Mr McGoran is fair and proportionate and therefore your appeal is rejected ... .”

29.	The claimant was also advised in that letter of his opportunity to lodge a further appeal to Mr Ciaran Doherty, General Manager - Bus Services.

30.	Mr Doherty had worked for the respondent since 2012 but prior to that had been Head of Operations at Irwin Bakery for around five years and confirmed that he had had experience in dealing with disciplinary proceedings and appeals for the previous 16 years.  The claimant’s letter of appeal of 17 December 2014 indicated that he wished to appeal on the grounds that the decision:-

“Was unfair and very harsh and there is little or no truth in the allegations levelled against myself.”

	He also argued that the investigation had been flawed and that several statements were conflicting.  Mr Doherty arranged to meet the claimant.  Due to unavailability of the claimant’s trade union representative, Mr McMurray of Unite, the appeal could not be heard until Monday 19 January 2015.  The claimant was accompanied in that meeting by Mr Murphy the most senior employee representative within the respondent company and Mr McMurray, a full-time trade union official.  The claimant was asked to provide his own version of events so that Mr Elliott had an opportunity to consider what had actually occurred.  Mr Doherty’s evidence was that he found the claimant to be ‘extremely vague’.  At the appeal the claimant again denied that he had taken any photograph of AB holding the gun or that he had made any comment to him in relation to having enough information to get him sacked.  In relation to the incident on Friday, the claimant had agreed that the ‘salute’ had taken place and went on to say that he saluted everyone and this was ‘just what he did’.  It is relevant to note that at the hearing of this matter the claimant also indicated that he saluted everyone and this was ‘just what he did’.  It would appear that the claimant is a creature of habit; at the hearing he repeatedly addressed the respondent’s counsel as ‘Sir’ and the Employment Judge as ‘Love’.  Presumably this is also ‘just what he did’.  The claimant went on to deny that he had made any comment along the lines of ‘brigadier commander’ or ‘brigade commander’.  Mr Doherty decided to adjourn the matter as he felt there was some further investigations he needed to carry out.  He carried on some further investigatory interviews with Martin Stead, George Johnston and Linda Lough.  He found Mr Stead to be ‘very guarded’ and he indicated that the fact that he and the claimant came to be saluting at the same time was ‘sheer chance, just circumstance’.  Mr Doherty did not find this to be believable.  He found Mr Johnston much more open, honest and genuine in his approach and accepted his account that AB had been photographed with the gun at his own request.  Mr Johnston was unable to confirm whether anyone else had taken a photograph ‘either way’.  

31.	Mr Doherty also saw Linda Lough as she been the primary contact with AB and he was unable to interview AB again.  Mr Doherty noted that Ms Lough had found that AB had been consistent in the details although his concept of time may not be entirely accurate and she also noted the impact on AB of the events.  Following that, Mr Doherty sent the claimant’s trade union representative a copy of AB’s statement, notes of investigatory meetings from the previous October with all the other relevant witnesses, notes of the disciplinary meetings with the claimant on 4 and 5 November 2014, notes in relation to the Brian Elliott appeal and other relevant correspondence, attendances and outcome letters from earlier stages.  There was then some e-mail correspondence with the claimant’s trade union representative to arrange a suitable date for a meeting once they had an opportunity to review the documentation and that meeting took place on 17 February 2015.  The claimant and his representatives had the opportunity to raise any issues they wished to raise.  Mr Doherty’s evidence was that this was not a particularly long discussion.  The claimant and his representative raised some issues in relation to AB’s consistency and whether or not he had been badly affected by the incident on the Thursday 16 October 2014 as he had come to work on Friday 17 October 2014.  They also referred to comments by Mr Mulhern and Mr Burns that they kept their distance from AB.  

32.	Mr Doherty then prepared a letter to be sent to the claimant.  His evidence to the tribunal was that he recognised that, having heard the evidence, there was no hard evidence in relation to some of the points before him, there was an admission that there was a salute and otherwise, in Mr Doherty’s words, ‘it was really one version of events against another’.  In relation to AB’s account of events, he could not think of any reason which would motivate him to make these allegations up, particularly given that he seemed to enjoy his work and had done so for a few years.  Mr Doherty also thought that AB was specific about the points made and consistent in his account of events, having been interviewed twice.  On the claimant’s side he found it difficult to believe the explanation that the claimant and Mr Stead had stood up and saluted AB on the basis of a coincidence.  He concluded that the salute could only have been as a result of ‘conspiracy’ between the claimant and Mr Stead as Mr Stead was not present in the hut on the Thursday and would not have been aware of that incident.  He stated the demeanour of the claimant and Mr Stead when interviewed by him suggested that he was not getting the full story from them.  He was of the view that the claimant had either taken a photograph or had led AB to believe that he had a photograph and that he had threatened him with it on the Thursday.  On balance, Mr Doherty preferred AB’s account of events over the claimant’s and accordingly he upheld the decision to dismiss.  

33.	The claimant indicated that he had been seeking other work but had not been successful in finding other work from the date of his dismissal.  

The relevant law

Unfair Dismissal

34.	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.”

35.	The leading authority on unfair dismissal 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.

36.	The Court of Appeal considered the case law and in particular the previous decision of the Northern Ireland Court of Appeal in Dobbin  v  CityBus 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 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.

37.	The nub of the test which must be applied in unfair dismissal cases is stated by Arnold J in British Home Stores:-

		“First of all there must be established by the employer the fact of that belief (ie 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.”  

38.	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 (see paragraph 17 of the judgment).  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 enquiries 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.

39.	In Bowater  v  North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal considered a decision of the Employment Appeal Tribunal which had set aside a decision of an employment tribunal.  The employment tribunal had determined that a remark made by a nurse in an Accident & Emergency Department was not a sufficient basis for a fair dismissal.  Lord Justice Longmore stated at Paragraph 18 of the decision that:-

“I agree with Stanley Burnton LJ that dismissal of the appellant for her lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case.  The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come.  But the employer cannot be the final arbiter of its own conduct in dismissing an employee.  It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer.”

	He continued at Paragraph 19:-

“It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET.  It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt, sometimes difficult and borderline decisions in relation to the fairness of dismissal.”

40.	In Fuller  v  London Borough of Brent [2011] EWCA Civ 267, the Court of Appeal again considered a decision of the Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the basis that the employment tribunal had substituted its view for the decision of an objective reasonable employer.  Lord Justice Mummery stated at Paragraph 7 of the decision that:-

“In brief the council’s case on appeal is that the ET erred in law.  It did not apply to the circumstances existing at the time of Mrs Fuller’s dismissal the objective standard encapsulated in the concept of the ‘range or band of reasonable responses’.  That favourite form of words is not statutory or mandatory.  Its appearance in most ET judgments on unfair dismissal is a reassurance of objectivity.”

	At Paragraph 38 of the decision, he continued:-

“On a proper self-direction of law I accept that a reasonable ET could properly conclude that the council’s dismissal was outside the band or range of reasonable responses and that it was unfair.  If, as I hold, the ET applied the objective test, it did not err in law and there was no ground on which the EAT was entitled to set it aside or to dismiss Mrs Fuller’s claim.”

41.	In Salford Royal NHS Foundation Trust  v  Roldan [2010] IRLR 721, the Court of Appeal again considered a decision of an Employment Appeal Tribunal which set aside the decision of an employment tribunal on the ground that that tribunal had substituted their judgment of what was a fair dismissal for that of a reasonable employer.  At Paragraph 13 of the judgment, Lord Justice Elias stated:-

“Section 98(4) focuses on the need for an employer to act reasonably in all the circumstances.  In A  v  B [2003] IRLR 405, the EAT (Elias J presiding) held that the relevant circumstances include the gravity of the charge and their potential effect upon the employee.  So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as on the facts of that case, the employee’s reputation or ability to work in his or her chosen field of employment is potentially apposite.”

	The matter was again considered by the Court of Appeal in England and Wales in Newbound v Thames Water Utilities Limited [2015] EWCA Civ 677, where Bean LJ observed:

		“The band of reasonable responses” has been a stock phrase in employment law for over thitry years, but the band is not infinitely wide.  It is important not to overlook s.98(4)(b) of the 1996 Act [The GB equivalent of Art. 130 (4)(b) of the 1996 Order] which directs employment tribunals to decide the question of whether the employer has acted reasonably or unreasonably in deciding to dismiss “in accordance with equity and the substantial merits of the case”.  This provision, originally contained in s.24(6) of the Industrial Relations Act 1971, indicates that in creating the statutory cause of action of unfair dismissal Parliament did not intend the tribunal’s consideration of a case of this kind to be a matter of procedural box-ticking ... an employment tribunal is entitled to find that dismissal was outside the band of reasonable responses without being accused of placing itself in the position of the employer”.  (para 61 of the judgment).

42.	The claimant alleged that there were procedural improprieties in the way that this matter had been dealt with.  In particular, the claimant alleged that it was inappropriate for Ms Lough and Mr McGoran to deal with both the investigation and disciplinary procedures.  It was explained that this was the usual procedure operated by the respondent company and that the respondent felt that there were safeguards for an employee in having two people dealing with these stages.  The point being made by the claimant was to suggest that there should have been separate people dealing with the investigation and the disciplinary procedures.  The Labour Relations Agency Code of Conduct on Disciplinary and Grievance Procedures says at Paragraph 8:-

“In deciding cases of unfair dismissal, tribunals will take account of an employer’s size and administrative resources when deciding if he/she acted reasonably.  In small organisations it is recognised that it may not be practicable to adopt all the detailed good practice guidance set out in this Code.  However, all organisations, regardless of size must follow the minimum statutory dismissal and disciplinary procedures where these are applicable.”

It does not suggest in the Code or in the statutory dismissal and disciplinary procedures that separate individuals must deal with the investigation and the disciplinary.  The LRA Code however states at Paragraph 63:-

“When drawing up and applying procedures employers should always bear in mind the requirements of natural justice.  This means that, where possible, employees should be given the opportunity of a meeting with someone who has not been previously involved in the process.  They should be informed of the allegations against them, together with the supporting evidence, in advance of the meeting.  Employees should be given the opportunity to challenge the allegations before decisions are reached and should be provided with a right of appeal.”

It is also suggested that it is best practice for different people to deal with the disciplinary procedure and the appeal.  Paragraph 50 provides:-

“A more senior manager not previously involved with the case should hear the appeal.  Where a person at the more senior management level has already been involved with the case and there is a manager of the same status who was not, the appeal should be heard by the latter.  In the event that neither of these is possible and the same manager who took the disciplinary action, unavoidably, has to hear the appeal that manager should act as impartially as possible.”

The other issue which the claimant focused on very much was the provision of statements.  The respondent admitted that they had not provided AB’s statement to the claimant before his initial disciplinary meeting, but had given his representative access to the statements and had made him and the claimant aware of the content of the allegations against him.  This was in breach of the respondent’s own disciplinary procedure which provided that written statements would normally be made available to the claimant or his representative.  The LRA Code of Practice provides at Paragraph 15 as follows:-

“The first step in any formal process is to let the employee know in writing the nature of what they are alleged to have done wrong.  The letter or note setting out the allegation can also be used to explain the basis for making the allegation.  It is important that an employee is given sufficient information to understand the basis of the case against them.  If applicable, it would normally be appropriate to provide copies of any written evidence, which may include any witness statements with the notification.  There may be exceptional occasions where an employer may decide not to provide copies of witness statements, and possibly other documents and information, particularly if a witness has expressed genuine fears.  While actual statements and the names of the witnesses may sometimes be withheld, the employee should still know the substance of these statements, if not the author.  If information on the basis of the allegation is not provided in writing, this should be conveyed orally to the employee before any meeting takes place.  While this approach is not required by law under the standard statutory dismissal and disciplinary procedure where the disciplinary action is a warning, it is good practice to take the three step approach regardless of any possible outcome of a meeting.”

Reasons and Decision

43.	The submissions made on behalf of the claimant allege that his dismissal was unfair, both on procedural and substantive grounds.  The procedural failings which the claimant alleged were first, in relation to the alleged unfairness of the investigation and disciplinary procedure, in that they were dealt with by the same individuals, namely Ms Lough and Mr McGoran.  The second procedural issue was in relation to failure by the respondent to provide the claimant with a copy of AB’s statement in advance of the disciplinary hearing.  

44.	In relation to the first issue, we note that it was the practice of the respondent at a depot where they had both a manager and deputy manager, for both to be involved in the investigation and disciplinary hearing.  We note the advice given in the Labour Relations Agency Code, and agree that it would be best practice for the investigation and disciplinary process to be dealt with by separate individuals.  It seems, however, in this case that there was an established practice (set out in the respondent’s disciplinary procedure) for both the investigation and disciplinary process to be dealt with by the same person and that practice was not seriously disputed by the claimant or his representative at the disciplinary hearing.  We agree that the respondent is a large organisation and it should have been possible for two people to be found to deal with the investigation and disciplinary process.  The claimant asserted that Linda Lough and Declan McGoran had a pre-determined view following the investigation and that this in turn tainted the disciplinary hearing and the subsequent appeal hearings.  However, there was no clear evidence adduced by the claimant to show that the procedure had been in any way tainted by this procedure or predetermined as Mr Murphy claimed, and it was an established part of the respondent’s own procedure.  The only point which could have supported this view was that Mr Doherty met Linda Lough, one of the investigating/ disciplinary officers as part of the appeal, apparently because he could not meet AB again.  There was no clear evidence suggesting that this tainted the appeal procedure.  Secondly, we are aware that this respondent afforded its employees not one but two opportunities at appeal, which appears to us to be exceptional.  There was therefore the opportunity for the claimant to raise any issues that he wished in relation to the procedures on appeal.

45.	In relation to the issue of provision of AB’s statement, we accept that the Code of Practice clearly states that the claimant should be made aware of all the allegations made against him.  Paragraph 15 of the Code of Practice, which we have quoted above, states:-

“If applicable, it would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification.  
There may be exceptional occasions where an employer may decide not to provide copies of witness statements, and possibly other documents and information, particularly if a witness has expressed genuine fears.  While actual statements and the names of witnesses may sometimes be withheld, the employee should still know the substance of these statements, if not the author.  If information on the basis of the allegation is not provided in writing, this should be conveyed orally to the employee before any meeting takes place.”

46.	Having considered all the evidence in this case, we are satisfied that the claimant, having been interviewed by Ms Lough as part of the investigation was well aware of the substance of the allegations made against him.  The allegations were also set out to him in the letter of invitation to the disciplinary meeting.  Furthermore, the respondent was clear that it had given the claimant’s union representative (who was also union representative for a number of the other individuals concerned) an opportunity to view the entire file of documents including witness statements, in advance of the disciplinary hearing.  There was a dispute about this and Mr Murphy stated that he had only briefly had the opportunity to read the statement in the course of the disciplinary meeting.  We accept, however, the evidence given by Mr McGoran and Ms Lough that the file of papers was provided to Mr Murphy in advance of the hearing.  We note that this point was not actually raised by the claimant and his representative until the middle of the disciplinary meeting itself and find it surprising that an experienced union representative did not raise the matter earlier if there was any doubt about the allegations.  We accept that in this particular case, where the complainant AB was a vulnerable adult, there was a good reason for the respondent not providing his witness statement.  We also accept that the respondent’s concern about information being ‘leaked’ to the press was a genuine one.  There had indeed already been a report in the Sunday World in relation to this matter and the respondent was correctly concerned to ensure that there would be no further breaches of confidentiality.  On this basis, we consider that it was appropriate for the respondent to facilitate the claimant and his representative in seeing the file of papers, but also in refusing to allow them to remove papers from the building, although they were given the opportunity to take notes.  That the claimant and his union representative failed to use this opportunity was really up to them.  

47.	We are completely satisfied that the claimant was well aware of the allegations against him, both at the disciplinary meeting and subsequently.  We also note that the claimant was provided with a copy of AB’s statement at the disciplinary hearing.  We also note that when the issue of provision of documents was raised at the appeal stage, Mr Elliott adjourned his appeal to consider how best to deal with this issue and indeed to consider whether the entire process needed to be re-started.  When he went to the trouble of providing a précis of notes from the investigation, he was informed by the claimant and his representative that there was ‘nothing new’ in these documents and that they had all this information already.  We note that the copies of the actual statements were provided for the final appeal, and again nothing new or different seems to have emerged from these, so we are satisfied that the claimant had all the necessary information with which to defend himself right from the initial disciplinary hearing.

48.	We accept that, on the face of it, the failure to provide the statements at the disciplinary hearing stage was a breach of the respondent’s own procedure.  In our view there were valid reasons for the respondent’s departing from this procedure on this occasion.  We accept that the claimant was well aware of the allegations against him and we do not believe that this rendered the process unfair.  

49.	The claimant also alleged that the allegations against him had been unfounded and that there was not sufficient evidence to ground a finding of gross misconduct against him.  The claimant’s representative submitted that the respondent did not have sufficient evidence to substantiate a finding of gross misconduct and that it was unreasonable for them to hold that belief.  We then considered the three-fold test set out by Arnold J in British Home Stores  v  Burchell, referred to at paragraph 37 above.  The employer must establish, first of all, the fact of its belief in the employee’s misconduct and, secondly, the employer must show that he had reasonable grounds on which to sustain that belief.  Thirdly, the employer must show that he has carried out as much investigation as was reasonable in all the circumstances of the case.  Arnold J also reminded tribunals that it was not relevant for them to examine the quality of the material which the employer had before them, to see whether it was the sort of material which, objectively considered, would lead to a certain conclusion on the balance of probabilities or whether it would put the matter ‘beyond reasonable doubt’.  The test all the way through is reasonableness.  

50.	In this case there was a clear dispute over the evidence of what had happened.  There were also two distinct incidents, one on Thursday afternoon when the gun was produced and the photograph was taken of AB with it; the second on Friday morning when the claimant and Mr Stead were alleged to have saluted AB and referred to him as ‘brigade commander’.  There were some other comments alleged to have been made, but the most significant incidents are the ones referred to above.  It is our view that the weight of the evidence in relation to these two incidents was different and therefore the reasonableness of the employer’s belief in the misconduct is different in relation to each incident.  In relation to the ‘gun’ incident, there was clear evidence from both George Johnston and Darren Burns (the latter having been seen as being particularly helpful to AB at work) that AB had shown an interest in the gun, had asked to hold it and had asked to have a picture taken with it.  Darren Burns stated in his statement (and it was not disputed) that he asked AB if his mother would be okay with him having a picture taken and AB was happy for it to be done, even setting up his phone for Darren Burns to take the picture.  George Johnston’s evidence confirmed that everything was pleasant and there was ‘nothing sinister’ in the discussion.  He also confirmed that Darren Burns took the photograph at AB’s request.  Neither of them saw the claimant taking a picture of AB or heard him make any comment to AB along the lines of ‘we’ve got the information to get rid of you now’.  Given that George Johnston left before the others, it is possible that he had not heard, but Darren Burns was clear that he had not heard anything further occur and that he had not seen the claimant take a photo of AB.  There were discrepancies between AB’s statement in relation to this incident and those given by Darren Burns and George Johnston.  In particular, both of them said that AB had specifically asked to hold the gun while AB himself said he had not.  No issue appears to have been picked up by Ms Lough or Mr McGoran in relation to this matter.  

51.	The claimant denied he had taken a photo of AB or made any comment about getting AB sacked, but Mrs Lough and Mr McGoran appear to have overlooked the clear evidence from Mr Burns and Mr Johnston which supported the claimant’s account.  In so doing, they failed to focus on potential evidence that “may exculpate or at least point towards the innocence of the employee” as much as on evidence tending to prove the charges against the claimant, as set out by Elias LJ in the Turner decision (see para 38 above).     

52.	In relation to the ‘saluting’ incident on the Friday morning, Ms Lough stated that when she spoke to Martin Stead she had the clear impression that they were “not getting the whole story”.  She stated that the claimant had initially denied that there was anything that had happened on the Friday morning and it was only when Mr Stead referred to the ‘saluting’ incident and referred to the claimant having said ‘AB wanted a photo of it’ that the claimant then agreed that the saluting incident had taken place, but he did not agree that the salute had been planned between him and Mr Stead.  Ms Lough and Mr McGoran found this unbelievable, as did Mr Elliott and Mr Doherty, dealing with the appeal.  We can understand that there were inconsistencies and lack of clarity in relation to the ‘saluting’ incident which led the respondent to that view and we can understand that they would have formed the belief on that basis that the claimant was not telling the truth about the incident on the Friday morning.  It is a greater leap, however, to assume that the claimant was then also lying about the incident on the Thursday afternoon, particularly when there were other people present at the time of the ‘gun’ incident whose evidence tends to support the claimant’s account of this incident rather than AB’s.  Ms Lough seemed to place a great deal of credence on Mr Barbour’s evidence of what he had been told by AB.  There was, however, a lack of clarity as to whether this incident occurred on the Thursday afternoon or Friday morning.  Mr Barbour’s account was that it had happened on the Friday morning, while AB seemed to suggest it happened on Thursday.  While Mr Barbour certainly took AB’s account of matters seriously, this conversation was not evidence that what was alleged by AB on the Thursday lunchtime had actually occurred.  It is not corroboration of AB’s evidence.  It is simply evidence that AB told Jim Barbour about the matter and was clearly perturbed by it.  It is our view, therefore, that while the employer had a belief that the misconduct had occurred, there were no reasonable grounds to sustain the belief that the incident had happened on the Thursday afternoon as alleged by AB. It was not therefore the act of a reasonable employer for them to believe AB’s allegations against the claimant, given the weight of evidence in support of the claimant’s account.  We accept that there was sufficient evidence for the employer to sustain a reasonable belief that the incident on the Friday morning had occurred and this incident of itself was serious.  While we are conscious that the standard of proof throughout in this matter is that required in a civil case, namely the balance of probabilities, we have some sympathy with Mr Murphy’s view that the employer needed something ‘more concrete’ on which to establish their belief regarding the Thursday lunchtime incident.  We take on board the comments of Elias LJ in A  v  B, referred to above, that:-

“ ... it is unrealistic and quite inappropriate to require the safeguards of criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiries 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.”  (See para 38 above).

	It appears in this case that Ms Lough and Mr McGoran, having come to the conclusion that the claimant was “not telling the full story” about the Friday incident, then took the two incidents as a whole and decided that he was also lying in relation to the Thursday incident.  In so doing, they did not take proper account of the evidence given by Mr Johnston and particularly Mr Burns which tended to support the claimant’s account of the Thursday incident.  We are not persuaded that this was the act of a reasonable employer.

53.	In relation to the investigation carried out by the respondent, it was thorough insofar as all the necessary individuals were interviewed.  We have concerns, however, about the weight given by the respondent to the evidence before it; they did not focus on evidence which might potentially point towards the innocence of the claimant as much as on the evidence which were directed towards proving the charges against him.  As was underlined in Sainsbury v Hitt, it is not just the dismissal which must be fair and reasonable, but the investigation and the procedure leading to dismissal must also be reasonable.  We are not persuaded that the investigation in this case took full account of all the evidence in favour of the claimant; had it done so, it is possible the outcome would have been different.   

54.	No separate issue was raised in relation to the appeals which were conducted, except that the claimant alleged that the defects in the initial disciplinary procedure tainted the appeals.  We do not accept this, as it was clear both appeals officers took steps to rectify defects in procedure and to follow up all the issues raised by the claimant.  We have no difficulty with the appeal procedures which were followed.  Indeed the respondent in this case has provided an extra ‘layer’ of appeal which is usually not provided.  

55.	In light of our findings above, it is our view that the dismissal of the claimant for his actions on Friday 17 October 2014 in ‘saluting’ AB and referring to as ‘brigade commander’ was outside the range of reasonable responses open to an employer in the circumstances of the case.  We take into account that we must not substitute our own judgment for that of the employer and we have endeavoured not to do so.  We are also aware of the dicta of Lord Justice Longmore in Bowater  v  North West London Hospitals NHS Trust (see above, paragraph 39): the employer is not the final arbiter of its own conduct in dismissing an employee.  It is for the Employment Tribunal to make that decision, bearing in mind always that the test is whether a dismissal is within the range of reasonable options open to a reasonable employer.  

56.	Longmore LJ commented in Bowater that Parliament had entrusted the responsibility of making “what are, no doubt, sometimes difficult and borderline decisions in relation to the fairness of dismissal” to Employment Tribunals.  This is one of those “borderline” decisions.  We are very conscious that we must not “re-run” the disciplinary and appeal hearings and that we did not have the opportunity to observe the demeanour of the other witnesses involved as the respondent’s staff did when conducting hearings.  It is our task however to consider whether the respondent had “reasonable grounds” on which to sustain its belief in the claimant’s misconduct (see Burchell, para 36, 37 above).  We must also consider, as Bean LJ reminded us in Newbound (see para 42 above) whether the employer has acted “reasonably or unreasonably” in accordance with equity and the substantial merits of the case.  

57.	We accept that the claimant behaved inappropriately on 17 October 2014 and that his conduct could have been seen as bullying or intimidatory to a vulnerable adult such as AB.  We have indicated above that we are satisfied that the incident as described on 17 October 2014 occurred, that the claimant and Mr Stead had a discussion in relation to the incident the previous day, that they agreed to salute AB when he came in and that the claimant addressed him as ‘brigade commander’.  We accept also that the claimant made some other comments in relation to AB assembling a gun and threatening to shoot somebody with it, which he intended as a rather heavy-handed joke, and which was completely inappropriate.  However, while the incident was undoubtedly serious, it is not clear to us that it warranted dismissal.  We note that Mr Stead, who was also involved in this incident, was given a final written warning.  It is our finding that dismissal of the claimant in this case was outside the band of reasonable responses for an employer to make and accordingly the claimant was unfairly dismissed.

58.	While the respondent took into account the penalties it had given to others in relation to these incidents, it was not clear that in dealing with the claimant Ms Lough and Mr McGoran had taken into account the fact that the claimant had not been given any training in relation to dealing with vulnerable adults.  Mr Elliott did take into account the fact that the claimant had previously been given training under the Dignity at Work policy, but the claimant was not in a senior position, he was a cleaner and it appeared that there was a working environment where there was a certain amount of ‘banter’ exchanged.  It does not appear to us either that the respondent took account of the claimant’s length of service (12 years) and the fact that he had a clear record prior to this incident in reaching their decision.  

59.	That said, we do not consider that the claimant was blameless in this situation:  the incident was a serious one and in our view he contributed to his own situation substantially by his conduct.  We were satisfied from the information given to us by both parties that it would not be feasible for the claimant to return to work for the respondent and we do not consider reinstatement an appropriate remedy in this case.  We also consider that because of the claimant’s contribution to his dismissal it would be appropriate to reduce the award for unfair dismissal to him by 75%.

60.	We did not hear detailed submissions in relation to remedy from the parties and, in particular, we did not hear submissions or an explanation of the claim in relation to the issue of pension loss.  We consider it would be appropriate to hear such submissions and accordingly this matter will be reconvened for a remedies hearing.

Employment Judge:

Date and place of hearing:  24 to 26 June and 1 July 2015, Belfast.

Date decision recorded in register and issued to parties: