THE INDUSTRIAL TRIBUNALS

CASE REF:  220/08

CLAIMANT:			Ray Quinn

RESPONDENT:		NI Trucks Limited

DECISION
The unanimous decision of the tribunal is that the claimant was fairly dismissed on the ground of misconduct.  

Constitution of Tribunal:
Chairman:		Mr N Kelly
Members:		Mr G Hunter
			Ms G Ferguson

Appearances:
The claimant was represented by Mr S Kelso, Barrister-at-Law, instructed by McAllister Keenan & Company, Solicitors.
The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Jones Cassidy & Jones, Solicitors.

The issue

1.	The issue before the tribunal was:-

“Whether the summary dismissal of the claimant was an unfair dismissal contrary to Part XI of the Employment Rights (Northern Ireland) Order 1996 (‘the Order’).”

Relevant facts

2.	The respondent company is a distributor of Iveco vans and trucks within Northern Ireland.  Iveco is part of the Fiat group.  The respondent operates from premises in Mallusk and Portadown and employs approximately 100 people.  

3.	Mr Stephen Sproule bought the respondent company in June 2004.  Mr Sproule is a Chartered Accountant with over 20 years experience as an auditor. He owns and operates other businesses within Northern Ireland.  In 2004, the respondent’s After Sales Manager, who was responsible for both the parts and servicing operations, was a Mr McFarland.  Mr Sproule recruited the claimant from Scotland to replace Mr McFarland and the claimant started work as After Sales Manager on 16 May 2005.  

4.	Initially the claimant was responsible for both the parts and servicing operations within the company and reported directly to Mr Sproule.  A Parts Manager had direct control over the parts operation. He was based in Mallusk and reported directly to the claimant. The name of the Parts Manager is irrelevant to this decision and he will be referred to simply as the “Parts Manager”.  

5.	Following a computer software installation in October 2006, there were major administrative difficulties and, as a consequence, backlogs of work built up.  The claimant, in his role as After Sales Manager, was under particular pressure to deal with these backlogs.  As a result, Mr Sproule changed the company structure so that the Parts Manager reported directly to him and the claimant was relieved of the direct responsibility for the parts operation.  That left the claimant with responsibility for the vehicle servicing operation of the respondent.  

6.	Under a range of commercial agreements between Iveco and the respondent company, the respondent was obliged to use only Iveco spare parts, which had been sourced directly from Iveco UK, for warranty work in Iveco vehicles and for cost care work (a service agreement with leasing arrangements) on those vehicles.  The respondent was entitled to use Iveco parts or non-Iveco parts sourced from motor factors for work on non- Iveco vehicles and for work on Iveco vehicles which was not being carried out under warranty or as part of a cost care agreement.  Iveco also operated a sales promotion scheme known as ‘Price Match’.  Under this scheme, authorised dealers, including the respondent, were encouraged to use Iveco parts sourced from Iveco UK.  Where an authorised distributor could demonstrate that equivalent parts were capable of being sourced from a motor factor or alternative source at a lower price, the distributor could claim the difference in price from Iveco UK if the parts were instead obtained from them.  

7.	Audits of authorised distributors, such as the respondent, were carried out from time to time by Fiat/Iveco to check that the commercial agreements between Fiat/Iveco and the relevant distributor were being implemented properly and, in particular, that only Iveco parts sourced from Iveco UK were being used in warranty and cost care work.  These audits also checked that the Price Match system was being operated properly by the distributor.

8.	It was clear from the oral and documentary evidence that the initial stage of the claimant’s employment went very well.  His first appraisal report for the period up to 26 October 2005 was very positive.  It described a ‘very promising start to his career with NI Trucks’.  

9.	On his appointment, the claimant had received basic information about his terms and conditions of service in writing but other matters were dealt with in                pre-appointment negotiations which were oral.  The claimant was later given a written contract to consider and sign.  He had substantial difficulties with the precise terms and conditions of employment contained within that contract, principally in relation to his pension and in relation to his salary. Those matters remained unresolved between his appointment in May 2005 and some point in July 2006.  There was no evidence of any sustained debate between the claimant and Mr Sproule about these issues during this period although it is clear that there was significant delay on Mr Sproule’s part in addressing the claimant’s complaints.  However, these matters were eventually resolved to both parties’ satisfaction.  The claimant then signed the amended contract.  Mr Sproule stated in evidence that the objections which the claimant had held in relation to the suggested contractual terms were entirely valid and that the initial written contract had been poorly based on an earlier precedent.  He regretted the delay in bringing these matters to a conclusion.

10.	On 5 January 2007 the claimant met Mr Sproule to discuss an issue which had arisen in connection with the insurance for his company car.  The claimant’s wife had been involved in a road traffic accident while driving that car and it had subsequently emerged that she had not been insured to drive the vehicle.  The contract as amended and signed by the respondent and the claimant indicated that the company car would be provided with insurance for the claimant’s wife.  The claimant stated in evidence that Mr Sproule had, during this meeting, responded in an aggressive tone to his complaint, shouting and screaming, swearing and getting ‘right in my face’ and coming ‘over the desk’.  Mr Sproule stated in evidence that he might have used swear words, which were not entirely unknown in this industry, but that his conduct during the meeting had not been out of the ordinary.  

11.	The claimant wrote a letter to Mr Sproule, on 6 January, accusing him of adopting an ‘aggressive tone’ and using ‘foul language’.  There was no mention in that letter of shouting or screaming, or of Mr Sproule getting ‘right in his face’ or of Mr Sproule ‘coming over the desk’.  The tribunal concludes, after listening carefully to both witnesses, that this meeting was a heated meeting, but not to the extent alleged by the claimant.  The tribunal has specific concerns about the claimant’s credibility which are set out later in this decision.  It prefers the evidence of Mr Sproule in relation to this meeting.

12.	In the letter dated 6 January 2007, the claimant was highly critical of Mr Sproule.  The claimant criticised specifically the delay in resolving the contractual issues concerning pensions and wages which had, however belatedly, been resolved some four months previously.  He raised further issues of allegedly inadequate resources and in particular what he saw as a pressing need to deal with the Parts Manager, who he stated had a drink problem.  He accused Mr Sproule of wanting to “stick his head in the sand and hope that the problem went away without taking proper action to monitor and support Mr ----- and to ensure that all other employees and the public are protected”.  He went on to allege that Mr Sproule had previously compared his own style of management to that of someone playing on a Playstation zapping aliens and that it was only when an alien finally zapped him that he felt the need to make a decision or to give an answer.  He finished with an exhortation to Mr Sproule to take time to reflect and indicated that he was prepared to listen and discuss these issues with Mr Sproule in order to resolve them. When it was put to the claimant that what he had said was perhaps rather rude in the context of a letter from a senior manager to the managing director and owner of the company, the claimant refused to accept that this could be the case.  In the opinion of the tribunal, the tone of the letter was extraordinary.  

13.	Mr Sproule responded to the claimant in writing with two separate letters both dated 9 January 2007.  One letter dealt with the car insurance point, which was the current issue which had triggered the heated meeting on 5 January 2007.  The second letter dealt with the other issues raised by the claimant.  

The first letter discussed the claimant’s concerns about car insurance and referred to an earlier allegation made by the claimant, allegedly on legal advice, to the effect that the respondent had been acting fraudulently in this respect.  Mr Sproule proposed a meeting between the claimant, himself and their respective legal advisers to sort the matter out.  

The second letter addressed the claimant’s other points and stated in particular that Mr Sproule had already told the claimant that he had talked to the Parts Manager and that he was going to deal with that issue himself.  

14.	Meetings were held on 29 and 31 August 2007 between the claimant and Mr Sproule to discuss ways in which to cope with the backlog of work which had emerged following the problematic computer implementation. Mr Sproule specifically raised shortcomings which he had identified in the claimant’s abilities to communicate and to prioritise work.  However he accepted that the backlog in work was not the claimant’s fault.  

15.	On Sunday 7 October 2007, a Fiat Group Auditor, Mr George McGill, arrived in Northern Ireland to perform an audit for the parts operation in NI Trucks.  The claimant had known Mr McGill for several years. He had worked with him previously and he was a personal friend.  He met Mr McGill at the airport and took him to his hotel.  They then had dinner at his hotel and went to the bar for a brief period after the meal. The claimant had already arranged to collect his child on his way home and very little drink was taken. 

16.	The tribunal has heard lengthy evidence about what was said or not said during the course of the conversation between the claimant and Mr McGill.  Both individuals gave evidence.  It seems beyond dispute that Mr McGill asked the claimant who the new owner of the respondent company was and what he was like.  The claimant said he was “okay overall but he (the claimant) had some issues”.  When asked by Mr McGill to explain that remark the claimant stated that the issues concerned his pension entitlement and car insurance.  The claimant clearly went into a little more detail in that Mr McGill was able to recount in evidence details of the claimant’s wife’s accident and could recall some details of the claimant’s concerns about his pension.

17.	When the claimant was about to leave the hotel bar to go home, Mr McGill asked him who he would be dealing with the next morning in connection with the audit of the parts operation.  The claimant named the Parts Manager and Mr McGill asked the claimant what he was like.  The claimant replied that he was ‘the resident alcoholic who shags secretaries’.  The claimant accepted in evidence that the second part of that remark was entirely untrue.

18.	On the following morning, Monday 8 October 2007, Mr Sproule was in the Mallusk premises.  The tribunal heard a great deal of evidence and discussion  about why Mr Sproule was there on that day.  He would normally have been in the Mallusk premises on Wednesday each week but it was not unknown for him to attend on other days as required.  The claimant alleged that Mr Sproule had been summoned by Mr Colin Woods, the Finance Director, because there was a major problem with the audit.  In fact the audit disclosed no such major problem and in any event the precise reason for Mr Sproule’s presence in Mallusk on that day does not seem to the tribunal to be in any way relevant to the issue that has to be determined by the tribunal.  Mr Sproule owned the business, was the managing director, and was entitled to be on the premises at any stage.  It would indeed have been odd if he had not shown some interest in the progress of the audit.  Mr McGill in particular, in evidence, stated that he had been surprised that Mr Sproule had not met him earlier than he did on 8 October 2007. 

19.	Mr Sproule in fact met both Mr McGill and the Parts Manager in the early afternoon of 8 October 2007. After initial pleasantries, he asked Mr McGill if he had been looked after.  Mr McGill confirmed in evidence that the initial conversation had really been nothing more than social chit chat and that he had confirmed that he had been picked up from the airport and that the claimant had taken him to dinner.  Mr Sproule stated that he then asked how that went.  Mr McGill’s slightly different version of events was that Mr Sproule had asked what they had talked about during dinner.  Given that there does not appear to be a great deal of difference between the two versions and given that Mr Sproule took a note of the conversation, whereas Mr McGill was relying on memory, the tribunal preferred Mr Sproule’s version, to the extent that it matters.  

20.	Mr McGill then said the claimant had told him that he had ‘some issues’.  In the context of an audit of a distributorship, conducted by an auditor acting for the manufacturer, it naturally concerned Mr Sproule that his After Sales Manager had told the auditor that he had ‘some issues’.  Such a statement would have concerned anyone in Mr Sproule’s position.  Mr Sproule asked “what issues?” Mr McGill said he could not discuss it in front of the Parts Manager who was still present.  Again, in the context of a parts audit by a manufacturer’s auditor, it was a matter of considerable and understandable concern to Mr Sproule that the external auditor, after disclosing that Mr Sproule’s After Sales Manager had ‘some issues’, then said that he could not discuss these issues in front of the Parts Manager.  It must also have been a matter of considerable concern to that individual who was promptly asked by Mr Sproule to leave the meeting.  

21.	Once the Parts Manager had left the meeting, Mr McGill explained that the claimant had some issues with Mr Sproule.  Mr McGill referred specifically to the problem with the pension and the problem with car insurance (both long resolved).  He then referred to the Parts Manager and his ‘problems with the sauce’.  

Mr McGill went on to tell Mr Sproule that he had gone back to his hotel room on the previous day after the dinner with the claimant and that he had felt ‘uncomfortable’.  He is recorded by Mr Sproule in his notes as having said:-

	“(a)	he felt he has been set up for something;

(b)	he has been put in a strange position by him (Ray) offering all that information; and

(c)	he wondered had he tried to cloud his decision.”

22.	Mr McGill in his evidence to the tribunal claimed that he had only been responding to direct questions put to him by Mr Sproule and that his answers were solely in response in those questions.  He further stated that his answers in each case should be prefaced by the words ‘it could be construed that’.  

23.	The tribunal notes that Mr McGill, when asked to explain what question prompted his initial statement to Mr Sproule that the claimant had “issues” which in turn prompted Mr Sproule to ask “what issues”, stated that he had been asked what had been discussed over dinner.  Mr McGill’s evidence was that Mr Sproule had been leading the conversation, had extracted the answers from him and that he had been acting to a preconceived agenda.  The question put to him by Mr Sproule, whether it was put in terms of ‘how did it go?’ or ‘what did you talk about?’ falls a long way short of the application of thumbscrews and does not appear to represent the sort of pressure which would have led Mr McGill to make any sort of statement against his will.  For example, Mr McGill could, if he had wished, simply have said that the meal went well or that they had simply discussed old times and old friends.  It was Mr McGill who responded to the effect that the claimant “had issues” and it is not surprising that Mr Sproule then went on to ask “what issues?”  The tribunal also notes that Mr McGill seemed very unclear as to whether or not the words “it could be construed that” were actually uttered by him before each of the statements recorded by Mr Sproule, whether he uttered them once in a way that would qualify all three statements, or whether he simply, at a later stage, wished that he had qualified his remarks.  In any event, Mr McGill did not deny that the words recorded by Mr Sproule were themselves uttered by him.  

24.	In any event, Mr McGill was clearly sufficiently uncomfortable at what he had been told by the claimant to pass on that information, under what was at best minimal pressure, to Mr Sproule who he was meeting in his capacity as a Fiat Group auditor and when Mr Sproule was acting in his capacity as Managing Director of NI Trucks.  

If, as suggested by Mr McGill to this tribunal, he felt under pressure to recount the entire conversation which had occurred on the previous evening, it is perhaps odd there was no evidence that every single matter discussed by Mr McGill and the claimant the previous night was then recounted verbatim to Mr Sproule.  For some reason, Mr McGill felt that he should pass the information about the pension issue, the car insurance issue, and the Parts Manager’s personal details to Mr Sproule.  As indicated above, this was a conversation between an external auditor sent by the manufacturer and the Managing Director of the company which was the subject of the audit.  The tribunal concludes that Mr McGill felt uncomfortable with the information that he had been given because of his role as an auditor.  There simply is no other credible explanation.  Mr McGill further accepted that he later told Mr Sproule that the remarks made to him by the claimant “could be seen to dissuade the decision or outcome of the audit”.  In cross-examination, when Mr McGill was asked “what else caused you to feel uncomfortable apart from professional concerns as an auditor?”, his reply was “nothing really”.  

25.	After the initial meeting between Mr Sproule and Mr McGill, Mr Sproule called the claimant into his office to discuss what he had been told by Mr McGill.  After a brief period, Paula Barbour, the respondent’s HR Manager, joined the meeting to take notes.  The claimant did not deny saying that he had issues with Stephen Sproule over the pension and car insurance or that he had said that the Parts Manager was “the resident alcoholic who shags secretaries”.  The meeting adjourned after 20 minutes for a brief period to allow the claimant to go to Mr McGill’s temporary office, to speak to Mr McGill, and to bring him back to the meeting with Mr Sproule and Miss Barbour.  

26.	The meeting resumed at approximately 16.50 pm with Mr McGill present.  It is apparent from the record of this part of the meeting, which was not disputed by the claimant, that Mr McGill was backtracking to a certain extent.  He is recorded as saying “uncomfortable – wrong choice of words.  Having sat back it could have been construed that Ray Quinn was giving me negative vibes”.  

“I sat back after the conversation (with Ray Quinn) and thought it was odd.  Not unusual just odd.”  

27.	The incident was then put in abeyance pending the completion of the audit by Mr McGill.  

On the next day, Tuesday 9 October 2007, Mr Sproule met Mr McGill to discuss the arrangements for the final audit meeting.  Mr McGill asked Mr Sproule if the claimant would be attending that meeting (rather than the Parts Manager) because “after everything that had happened, he assumed that Ray would be taking over the reins”.  

Mr McGill sought in evidence to explain this remark by stating that there had been a problem in NI Trucks in that a large number of genuine Iveco parts, which had been bought legitimately from factors but not direct from Iveco UK, might have been confused on the shelves in the storage area with those which had been bought direct from Iveco UK.  However, it is clear from the correspondence from Iveco,    which was produced to this tribunal, that this had not been regarded as a major issue – certainly not an issue calling for the demotion or dismissal of the Parts Manager.  Mr McGill maintained in evidence that he made this remark because, in what he regarded as similar circumstances in another audit, the Parts Manager had been dismissed by the distributor.  The final Iveco report on Mr McGill’s audit and a follow-up audit which focused on a particular sub-issue stated, halfway through a lengthy letter, that:-

“A check of the purchase ledger identified that NI Trucks had alternative suppliers for these components.  Where alternative suppliers were being used, the parts were stored in the same location as the Iveco sourced parts and they were not identified as such.  NI Trucks have now confirmed that non-Iveco UK sourced parts are now clearly identified in the storage locations.”

The audit and the follow-up audit disclosed only very minor discrepancies.  The follow-up audit alone involved some 550 transactions being checked and there was a discrepancy amounting in total to approximately £70.00 out of a total expenditure in excess of £100,000.00.  The tone of the letter from Iveco appears to the tribunal to have been positive and there was no problem of any significance identified by Iveco in these audits.  

On that basis it is difficult for this tribunal to understand Mr McGill’s remark on 9 October 2007 or his subsequent evidence to this tribunal maintaining that he had assumed that the Parts Manager would have been dismissed by the respondent.  It is clear that the respondent was perfectly entitled to purchase parts from motor factors and indeed to use them in certain circumstances.  The only query related to the storage arrangements and the possibility, and no more than the possibility, of parts sourced from Iveco UK being confused with Iveco parts sourced from elsewhere. That did not attract any particularly negative comment from Iveco.  However it is perhaps easier for this tribunal to understand how Mr Sproule was concerned at this remark and how his initial concerns about what the claimant had said in relation to the Parts Manager in his discussion with Mr McGill were heightened.

28.	Mr Sproule compiled an investigation report, drawing together the discussions and his concerns in relation to the claimant’s disclosures to Mr McGill.  He set out four charges of misconduct as follows:-

“(a)	That Ray Quinn breached confidentiality in relation to the disclosure of confidential details of [ the Parts Manager’s ] medical condition to Mr McGill.

(b)	That Ray Quinn breached confidentiality in relation to the disclosure and Inspection of confidential details regarding an issue that arose between myself and Ray Quinn in relation to his pension.

(c)	That Ray Quinn breached confidentiality in relation to the Discovery and Inspection of the disclosure of confidential details regarding an issue that arose between myself and Ray Quinn in relation to insurance on his wife’s car.

(d)	That Ray Quinn’s conduct and breaching confidentiality by disclosing the information listed at (a) to (c) above and in engaging with discussions with Mr McGill which resulted in him formally raising his concerns with me and expressing a fear that he may have been set up or had been provided with information in an attempt to cloud his judgment, amounts to a breach of the duty of good faith owed by Ray Quinn to the company such as to have caused the fundamental breakdown in trust and confidence.”

29.	The claimant was suspended with full pay on 12 October 2007.  Mr Sproule stated in evidence that he suspended the claimant because he wanted time to reflect on what had happened and time for the claimant to reflect on what had happened.  During the period of suspension he interviewed the Parts Manager.  There were no other specific investigatory steps during this period.

30.	A letter was issued from the respondent’s HR Department on 18 October 2007 setting out the four charges and inviting the claimant to attend a disciplinary hearing on 22 October 2007.  It advised the claimant, in the normal form, that he was entitled to be accompanied by a work colleague or a trade union representative.  Mr Stephen Greeves, the Director of Customer Services, would conduct the hearing and Mr Colin Woods, the Financial Director, would act as note taker.

In the event, the claimant attended the hearing accompanied by his brother-in-law who was also his solicitor; clearly not a fellow employee or trade union representative.  The respondent did not object to his solicitor’s presence.  

It later emerged that this meeting, and all subsequent meetings, had been covertly recorded by the claimant.  

31.	The claimant is recorded in the respondent’s record of the meeting as making various comments about amendments that he wanted to make to previous documentation.  There does not appear to have been any dispute about those amendments.  

The claimant confirmed that the pension issues (and the other contractual issues) had been sorted out months earlier.  He claimed that Mr Sproule had not spoken to the Parts Manager about his drink problem.  This is inconsistent with Mr Sproule’s clear and convincing evidence and with Mr McGill’s recorded statement in a later meeting to the effect that the claimant had told Mr McGill that Mr Sproule had put the Parts Manager on a programme to help him with his drink problem.  The tribunal concludes that the claimant was wrong to say that Mr Sproule had not done anything to address the Parts Manager’s medical problem.  

32.	The claimant also alleged at this meeting that the Parts Manager had in October 2006 (one year previously) pushed him out of the way leaving him with minor and unspecified injuries.  In evidence before the tribunal this became an assault that had been ignored by Mr Sproule.  However the tribunal notes that it featured nowhere in the claimant’s letter of 6 January 2007 in which he rehearsed a list of complaints including a complaint that Mr Sproule would “stick his head in the sand and hope that it would go away and nothing would come of it instead of taking proper action to monitor and support [the Parts Manager]”.  It also seems clear that no formal grievance had been lodged by the claimant in relation to this incident and that no disciplinary action was taken by the claimant in his capacity as the Parts Manager’s line manager at that time.  The tribunal takes into account the issues relating to the claimant’s credibility which are set out later in this decision and concludes that the claimant has chosen to exaggerate this alleged incident in an attempt to establish that he had been dealt with more harshly than another employee.  

33.	Mr Greeves met Mr Sproule and interviewed him as part of the disciplinary process on 24 October 2007.  Mr Sproule e-mailed Mr Greeves later that day to stress that Mr Greeves was free to take whatever decision he wanted and free to take advice from independent third parties if he wished to do so.  

34.	Mr Greeves also interviewed Mr McGill by telephone on 23 October 2007.  Mr McGill was at his normal place of work in Scotland.  This interview was conducted by speakerphone and notes were taken by Mr Woods.  Mr McGill confirmed that on Sunday 7 October 2007, at the hotel, the claimant had told him the name of the Parts Manager and that he had a problem with alcohol and “shagging secretaries”.  The claimant had also told him that Mr Sproule had put the Parts Manager on a programme to help him with his drink problem.  Mr McGill confirmed that the words set out below were his in his conversation with Mr Sproule on 8 October 2007:-

	“He felt that ‘he was being set up for something’.

That he was ‘put in a strange position by him (RQ) offering all of this information’.

	I wondered had he ‘tried to cloud my decision’.”

He went on to state that “you have to prefix it” with “it could be seen or it could be construed as, ie there are two ways of looking at it”.  There was no specific statement that these qualifications were actually uttered by Mr McGill in his conversation with Mr Sproule rather than put forward as a later rationalisation or retraction.  

35.	Mr Greeves spoke to the claimant by speakerphone again on 26 October 2007 and Mr Woods kept notes.  The claimant commented on copy papers previously sent to him and suggested various amendments.  

36.	Mr Greeves continued the disciplinary hearing on 29 October 2007.  Mr Woods again took notes and again, it was covertly recorded by the claimant.  Mr Greeves read out his decision upholding the first and the fourth charges and dismissing the second and third charges.

Mr Greeves concluded that the claimant had breached confidentiality by disclosing confidential details of the Parts Manager’s medical condition to Mr McGill.  He did not regard the pension and car insurance issues as matters involving a breach of confidentiality.  He finally concluded that the breach of confidentiality in relation to the Parts Manager together with the claimant’s continued failure to recognise that he had done anything wrong amounted to “a breach of good faith owed by (the claimant) to the company such as to have caused a fundamental breakdown in trust and confidence”.  He upheld the dismissal.

37.	The claimant appealed this decision.  Mr Greeves, on behalf of the respondent, and on the advice of their solicitor, appointed Una Sheehan, an independent HR Consultant, to hear the appeal.  The claimant objected to this course of action and suggested that Mr Albert McMullan, a Sales Director, should hear the appeal.  However given that the claimant’s view, as expressed during the disciplinary process and as expressed on oath to this tribunal, was that Mr Greeves, as a director, was simply going to deliver the verdict wanted by Mr Sproule, it is extremely difficult for this tribunal to see how the claimant would have viewed the appointment of Mr McMullan, as a person to hear the appeal, any differently.  When pressed, the claimant simply referred to the recommendation in the LRA Code of Practice and the provision in the Staff Handbook which both provided that another director of the same level would normally hear the appeal.  He did not suggest that Mr Albert McMullan who answered to Mr Sproule in precisely the same way as Mr Greeves answered to Mr Sproule, was more trustworthy than (in his opinion) Mr Greeves.  

38.	The appeal hearing was held on 12 November 2007.  The claimant again attended with his solicitor.  Again the hearing was covertly recorded.  

One set of notes relating to 8 October 2007 and a letter or letters dated January 2008 were found to be missing from Ms Sheehan’s papers.  These documents were given to her either during the hearing or shortly thereafter.  Ms Sheehan accepted that she may have inadvertently given the claimant the impression that there would be a further appeal hearing before she reached a final decision but that was not her intention.  The tribunal accepts her evidence on this point.  It is difficult for the tribunal to see what point there would have been in a further appeal hearing.  The claimant had been given a full opportunity to raise every issue that he wanted to raise in connection with the appeal.  

Ms Sheehan interviewed Mr Sproule on 14 November 2007 about the conversations he had with Mr McGill. She decided not to interview Mr McGill. She had the notes taken by Mr Sproule and the later notes in relation to the disciplinary stage. She took the view that nothing would be achieved by a further interview.

39.	The appeal was dismissed and the dismissal decision was upheld.  

40.	Mr Sproule met the claimant on 3 December 2007 and offered him £9,000.00 as an ex-gratia payment, described as a gesture of good faith.  He said that he would offer a further sum if a compromise agreement was signed.  Despite the nature of this discussion, it was again covertly recorded.  However the respondent did not object to the introduction into evidence of the transcript subject to the audio recording also being made available.  That meeting adjourned so that both the claimant and Mr Sproule could consider their position and in particular the amount of any ex gratia payment which Mr Sproule might give or the claimant might accept.  There was no admission of liability.

41.	Mr Sproule and the claimant met again on 6 December 2007.  This was described in the claimant’s own note as a compromise agreement meeting.  The claimant asked for £49,000.00 in addition to the £9,000.00 already promised.  Mr Sproule offered £18,000.00 in total.  No agreement was reached and no compromise agreement was signed.  Again there was no admission of liability.

42.	The tribunal is particularly concerned at the claimant’s conduct in relation to the covert recording of what he himself described as a compromise agreement meeting.  Meetings to discuss whether or not litigation can be compromised, with or without admissions of liability, are an essential part of the litigation process, particularly the process in relation to employment dispute resolution.  It is entirely wrong and indefensible that such meetings should be covertly recorded. If support for this entirely unremarkable proposition is required, the tribunal refers to the decision of the EAT in Chairman and Governors of Amwell View School  v  Dogherty [2007] IRLR 198. In that case the EAT ruled as inadmissible covert recordings of the closed part of disciplinary and appeal hearings while allowing as admissible covert recordings of the parts of those meetings when the claimant was present. The EAT went on to say:-
“It is always distasteful when a party seeks to introduce in legal proceedings evidence obtained otherwise than openly and fairly.”

43.	The claimant, in his evidence, placed particular reliance on the following excerpt from his transcript which he suggested showed that Mr Sproule did not really regard his disclosure of the Parts Manager’s medical records as a serious breach of confidence.  This excerpt was highlighted in bold print in the transcript produced by the claimant and was at a point in the meeting where the parties were discussing the possibility of Mr Sproule giving a reference to any potential new employer:-

“I’m going to say you are dismissed on the grounds of confidentiality but I will say this for Ray’s benefit that at the end of the day the matter of confidentiality was something which was a difference of opinion, are you with me?”

When the covert recording was made available to the tribunal and played, it was clear that the actual wording was:-

“I’m going to say that you were dismissed on the ground of confidentiality, but I will balance it with the comment [tribunal’s emphasis] that at the end of the day that the matter of confidentiality was something which was a difference of opinion, are you with me?”

In the opinion of the tribunal, having heard the recording and having listened carefully to Mr Sproule and to the claimant, the actual wording made it clear that Mr Sproule was not conceding anything in relation to this view of the seriousness of the disciplinary offence but that he was offering to “soften the blow” in the terms of the wording of any employment reference.  To record a compromise agreement meeting covertly is reprehensible conduct in any event.  To transcribe that record inaccurately and then to seek to misrepresent what was said by the respondent is even worse.

Relevant law

44.	In British Home Stores Ltd  v  Burchell [1978] IRLR 389, the decision stated that in determining whether a dismissal is unfair, a tribunal has to decide whether an employer who dismisses on the grounds of misconduct has entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that conduct at that time.  That in itself involves three elements.  First, there must be established by the employer the fact of that belief; that the employer did believe it.  Second, there must be shown that the employer had in his mind reasonable grounds upon which to sustain that belief.  Third, the employer at the stage at which he formed that belief for those grounds must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case.

45.	The Court of Appeal in the case of Sainsburys Supermarkets Ltd  v  Hitt [2003] IRLR 23 stated that a tribunal in this situation cannot substitute its own judgment as to what amounts to a reasonable investigation.  It must apply an objective standard, ie the standard of the reasonable employer as to what constitutes a reasonable investigation. 

46.	The Employment Appeal Tribunal determined in Iceland Frozen Food Ltd  v  Jones [1982] IRLR 439 that the function of a industrial tribunal is to determine in the particular circumstances of each case, whether the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within the band the dismissal is fair.  If the dismissal falls outside the band is it unfair.  

47.	The Court of Appeal in Andrew James Taylor  v  OCS Group Ltd [2006] EWCA Civ 702 stated:-

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

	The court went onto say:-

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

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

Credibility

49.	The tribunal has serious concerns about the credibility of the claimant.  

The claimant stated in evidence that he had been told by a Mark Thompson in Iveco that Northern Ireland Trucks had been selected for a special parts audit because certain “parameters” had been breached and that those breaches had been detected in Iveco’s Headquarters.  In other words, the respondent had done something wrong which triggered the audit.  Mr McGill, who was called as a witness for the claimant, made it clear that the audit was part of a new programme of parts audits.  The respondent was one of six companies selected for a trial of the new programme.  He did not know how the six companies were selected but it had been up to Mr McGill to put them in whatever running order he wanted.  The respondent was possibly the third dealer in the trial batch to be audited.  He was not aware in advance of any particular problem in the respondent’s business that needed to be looked at.  The tribunal concludes on the balance of probabilities that the claimant’s repeated position that the respondent had been subject to a special audit because it had been identified in advance as having done something wrong was false and was designed to discredit the respondent.  It is, in the view of the tribunal, inconceivable that, if matters were as alleged to the claimant, Fiat/Iveco would have sent their auditor to the respondent when he ‘was not aware of any particular problem in NI Trucks that needed looked at’.  

50.	The claimant maintained in evidence that Mr Sproule had done nothing in relation to the Parts Manager’s medical problem.  However, Mr McGill told Mr Greeves that he had been told by the claimant that Mr Sproule had put the Parts Manager on a programme to help him with his drink problem.  This information could only have come from the claimant and it is disturbing that the claimant continued to deny having given that information and continued to try to suggest that Mr Sproule had done nothing in relation to the Parts Manager.

51.	The claimant stated in evidence that the Parts Manager’s drink problem was common knowledge.  It was ‘in the public domain’ and was therefore not a breach of confidence.  However he stated, again in evidence, that when the Parts Manager told him in June 2006, as his line manager, that he was an alcoholic, it was the first time that the claimant had heard of it.  By that stage, the claimant had been his line manager for one year and had frequent and daily contact with him.  If, as the claimant persisted in alleging, the drink problem was common knowledge it is inconceivable that the claimant, as the immediate line manager, would have remained unaware of that problem for a full year, particularly since he claimed to the tribunal that the Parts Manager had serious and ongoing performance problems.  If that were the case he would have been looking particularly closely at his performance and could not have failed to detect what he described as ‘a drink problem’.

52.	In relation to quantum, the claimant gave evidence about a brief period of further employment that he had with Wilsons of Rathkenny.  He stated repeatedly that this had been a brief trial undertaken by Wilsons of a specific management role for one month and confirmed that this was a trial of a role rather than a trial of the claimant as an employee.  He stated that after one month he was called in and told that the role was not working out as Wilsons thought it might have done.  The claimant’s evidence was “they said it was nothing to do with me – that was the end of the conversation”.  When it was suggested that this contradicted the replies to particulars given by his own solicitor to the effect that he had been dismissed from Wilsons of Rathkenny after five weeks, with no mention in those Replies of a trial period, the claimant stated that he may have led ‘Brian’ (his solicitor and brother-in-law) to believe that was the case.  When it was put to the claimant that he had been dismissed he replied “no, absolutely not”.  

53.	The claimant was directed to produce the correspondence relating to his brief employment with Wilsons of Rathkenny on the following day of the hearing.  That correspondence was produced.  It comprised two letters.  In the first, the claimant wrote to Wilsons on 26 June 2008 referring to his ‘initial shock at being dismissed from your company’ and referring to ‘a guaranteed period of three months’.  There was no mention of a trial of a role for one month as the claimant had repeatedly maintained in his earlier evidence to the tribunal.  The claimant also stated in this letter that “the example given as to why things are not working out and how they will not work out beggars belief”.  He explained that this was a reference to a statement made by Wilsons to the effect that a manager should know when his staff are late.  This directly contradicts the sworn testimony on the previous day that he had been told there was no criticism of him.  The claimant sought to explain this by saying that his brother-in-law, in some way, had made him think that this was the case.  The tribunal concludes that the initial sworn testimony about a one month trial period of a role was an effort on the claimant’s part to persuade the tribunal that he had not been dismissed from Wilsons of Rathkenny and that he had simply tried a short term trial period which did not work out for reasons which were not his fault.  The tribunal concludes this was an effort on his part to maximise compensation.  His solicitor’s replies and his own letter to Wilsons of Rathkenny make it plain that he had been dismissed and that his engagement had not been a simple one month trial of a new management role.  The tribunal is particularly concerned that the claimant doggedly persisted in maintaining a position which was patently false.

54.	The tribunal is obliged to take into account the provisions of the LRA Code of Practice on Disciplinary and Grievance Procedures when determining whether a dismissal is fair. Paragraph 48 of the Code provides:-

“A more senior manager not previously involved in the case should hear the appeal. Where a person at the most senior management level has already been involved in the case and there is a manager of the same status who has 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. Records and notes of the original disciplinary meeting should be made available to the person hearing the appeal where that person had no previous involvement”.

Decision

55.	The claimant’s position throughout the hearing was that he had not breached confidentiality. There had been no misconduct on his part. The tribunal does not accept this and concludes that the respondent was entitled not to accept this.  The Parts Manager had disclosed his medical condition to the claimant in June 2006 in his capacity as his line manager.  He felt the claimant needed to know.  It is clear from the evidence that the information was not widely known.  It was clearly not in the public domain as alleged by the claimant.  The information about the Parts Manager’s medical condition had been obtained in the course of the claimant’s employment and was then subsequently disclosed by the claimant to Mr McGill in the course of the claimant’s employment.  His meeting with Mr McGill at the hotel was part of his duties as After Sales Manager.  It was a ‘meet and greet’ function which he himself described as normal business practice.  He normally met visitors from England in this way and the same was done to him in turn when he went to England.  The medical information was clearly confidential on both a personal but also, and principally, on a business level.

56.	The use of an independent third party, ie Ms Una Sheehan, to hear the appeal was perfectly proper in the view of the tribunal.  This was a situation where the claimant had objected to Mr Greeves hearing the disciplinary hearing because he would only have delivered his master’s bidding.  The same objection could reasonably have been anticipated in relation to a possible selection of Mr Albert McMullan as the person to hear the appeal. He was also answerable to Mr Sproule.  The LRA Code of Practice is only a matter of recommendation.  The fact that in these circumstances the Code recommends that an employee of equivalent standing should hear the appeal does not, in the tribunal’s view, prevent an employer going even further than that to ensure a fair process and certainly does not make it unlawful or unreasonable for an employer in these circumstances to make the additional effort and go to the additional expense of engaging an independent party to hear an appeal or to perform any other function in a disciplinary process.  

57.	The claimant objected in particular to the fact that there had not been a further appeal hearing when he had been led to believe that there would be such a further appeal hearing. Ms Sheehan accepted in evidence that she may have unintentionally given that impression.  That said, it is difficult to see what further purpose there would have been in such an appeal hearing.  The claimant had been given a full opportunity to ventilate any points that he wished to make in relation to the appeal and was unable, when asked to do so, to state with any specificity what further issues could or would have been raised at a subsequent and additional appeal hearing.  The tribunal does not regard this matter as rendering a dismissal unfair.  

58.	There was lengthy discussion about the precise wording of Paragraphs 4.8 and 4.9 of the Staff Handbook and the initial dismissal decision of Mr Greeves and the decision on appeal.  Employers are not expected to draft disciplinary charges with the degree of precision expected in an Old Bailey indictment.  It is sufficient that the employee knows clearly the substance of the charge that he or she is facing.  The tribunal is satisfied in this particular case that the claimant knew exactly what he was being charged with, ie a breach of confidentiality in relation to, initially, the pension issue and the car insurance issue and also and finally in relation to the disclosure of the Parts Manager’s medical condition.  There was no unfairness in any of this and no detriment to the claimant.  

59.	The claimant argued that his remark about the Parts Manager had only been flippant and had to be judged in the context of the conversation that he had with Mr McGill in the hotel on 7 October 2007.  His argument was that this context was solely a conversation between two old friends about individuals they regarded as ‘characters’ in their industry, which appears to mean, in the claimant’s view, individuals who drank to excess and who chased secretaries.  The claimant is right to argue that any remark has to be judged in its context when considered as possible misconduct.  In the view of the tribunal, this is precisely what the respondent did.  The remark was made to a Fiat/Iveco Auditor about the Parts Manager of the respondent.  That Auditor was, on the next day, going to audit that area, and only that area, of the respondent’s business.  Mr McGill’s subsequent remarks on the following day to Mr Sproule entitled Mr Sproule to be seriously concerned about the possible impact of those remarks on the conduct of the audit and entitled him to be seriously concerned about the claimant’s conduct in disclosing such information to a third party who he was meeting in a professional capacity.  Both the claimant and Mr McGill maintained that the remark had only been “flippant”. It cannot, in the opinion of the tribunal, be reasonably argued that a breach of confidentiality is not a breach of confidentiality if it is made flippantly. In any event, the respondent was not at any stage unaware of the circumstances and the context within which the relevant remark was made. Furthermore, Mr McGill, as discussed previously, had been sufficiently concerned by what he had been told to pass the information on to Mr Sproule and to state that he had been uncomfortable. If it had been no more than a flippant remark, it is difficult to see why it was treated so seriously.

60.	It is not sufficient to say, as the claimant repeatedly argued, that the Parts Manager was irrelevant to the audit process.  The claimant argued that the audit was simply a paper exercise, ie a matter of checking one document against another.  However, the Parts Manager would have had to explain any discrepancies which emerged in that exercise and would have had to explain any missing documentation.  Indeed he would have had to explain the practices in relation to the storage of parts which seems to have, at one point, so exercised Mr McGill and the claimant.  The respondent was entitled to conclude that the Parts Manager’s credibility had potentially been damaged by the claimant’s disclosure.  The fact that Mr McGill expected the Parts Manager to be dismissed illustrates that the Parts Manager had a central role in the audit. It also legitimately heightened Mr Sproule’s concerns about what had been said by the claimant to Mr Sproule.

61.	The tribunal, as suggested by the Court of Appeal in the Taylor case has considered the procedural issues, identified above, together with the reasons for the dismissal.  The tribunal is satisfied that the reason for dismissal was the misconduct of the claimant in disclosing the confidential business information relating to the respondent’s Parts Manager to Mr McGill, the auditor from Fiat/Iveco.  There were no procedural errors identified which were of any substance or which would have, in the opinion of the tribunal, rendered the dismissal unfair.  There was no need for a further appeal hearing.  The fact that Ms Sheehan had not interviewed Mr McGill gave the tribunal some concern.  However, having reviewed the papers which would have been in Ms Sheehan’s possession, the tribunal can see why she concluded that it was not necessary to go back to Mr McGill at that point.  Mr McGill had already been interviewed and had already given a full account of his conversations with the claimant and with Mr Sproule.  There was no reason for her  to have considered that Mr Mc Gill’s account of those conversations would have changed. The claimant was perfectly aware of the nature of the charge that he was facing and had been given at each stage of the disciplinary and appeal process a full opportunity to respond.  The decision to suspend the claimant was challenged by the claimant. While the decision to suspend him was clearly not made solely to allow further investigation, it is not clear how the claimant alleges that the decision to suspend him rendered the dismissal unfair. The tribunal has considered the LRA Code. However, the tribunal also notes that the suspension was not made public. The claimant’s colleagues were told that he was taking time off for family reasons.  The tribunal is also satisfied that Mr Greeves and Ms Sheehan were not prejudiced by the suspension and that they approached their respective tasks fairly.

62.	The tribunal concludes that the decision to summarily dismiss the claimant was within the band of reasonable responses open to the respondent.  The claimant was a Senior Manager and had disclosed confidential business information to an external auditor on the day before the audit.  The respondent was entitled to conclude that the disclosure of this confidential business information could well have prejudiced that audit.  Despite the evident backtracking on the part of Mr McGill in his evidence to this tribunal and in the course of the disciplinary process, it was clear that Mr McGill had been sufficiently concerned about what he had been told by the claimant to tell Mr Sproule that he had gone back to his hotel room and thought about it and that he was uncomfortable at the information that he had received.  Whether or not that information had been coaxed or extracted out of him by leading questions does not seem to be a matter which is hugely relevant.

The nature of the misconduct was such that a senior manager of the claimant’s experience would have known that summary dismissal was an option open to the employer; in other words, it was within the band of reasonable responses. The tribunal does not accept that the claimant was unaware of this fact.

The respondent at the disciplinary stage, and at the appeal stage, took into account the claimant’s clear disciplinary record when weighing the evidence and reaching the decision that summary dismissal was appropriate.   

63.	The claimant alleges he had been the subject of a vendetta on the part of Mr Sproule and that he had, in effect, been ‘set up’.  There does not appear to be any credible evidence to support this allegation.  The issues concerning his pension, other contractual matters and the car insurance had been resolved long before the audit was a possibility.  He alleged, in particular, that he had been ‘pressurised’ into going to a hotel in Brazil for what appears to have been a junket.  When asked repeatedly to describe the nature of that pressure, he was unable to do so other than to suggest that he was told he should go.  There is no element of threat or coercion involved.  The documentation seems to be consistent with Mr Sproule’s evidence that he did not attach any blame in relation to the backlog of work to the claimant and that he had attempted to work with the claimant to sort matters out including taking over personal responsibility for the management of the Parts Manager. Furthermore the use of an independent third party to hear the appeal and the fact that no objection was made to the presence of the claimant’s solicitor at the disciplinary hearing is inconsistent, to say the least, with a vendetta and a conspiracy on the part of Mr Sproule to get rid of the claimant.

The core of the claimant’s allegation of a vendetta was that Mr Sproule had deliberately, through leading questions, extracted information from Mr McGill which he then proceeded to use against the claimant. That simply begs the following question; how could Mr Sproule have known, or even suspected, that the claimant would have said anything to Mr McGill that could have been presented as misconduct? Unless, Mr Sproule was in the habit of quizzing everyone that the claimant spoke to, on the off chance that some indiscretion might have occurred, that does not make sense. 

64.	The tribunal concludes that the claimant was fairly dismissed on the grounds of misconduct and dismisses the claim.  

Chairman:

Date and place of hearing:	29 September 2008 – 3 October 2008, Belfast

Date decision recorded in register and issued to parties: