THE INDUSTRIAL TRIBUNALS

CASE REFS: 423/08
				                                598/08	

CLAIMANT:		Brendan McFerran	

RESPONDENT:	Invest NI	

DECISION
The unanimous decision of the tribunal is that all of the claims are not well founded.  Accordingly, all of those claims are dismissed.

Constitution of Tribunal:
Chairman: 	Mr P Buggy		
Members:	Mr J Devlin
		Mr D Walls	

Appearances:
The claimant appeared in person for part of the hearing.  However, for most of the hearing, he was represented by Mr E Hanvey.

The respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Cleaver Fulton & Rankin Solicitors.

REASONS
1.	When Invest NI (“INI”) took over the function of LEDU, it also took over the staff of LEDU.  By the time INI took over LEDU, the claimant had been a senior LEDU Officer for many years.  For most of his time with LEDU, and for all of his time with INI, the claimant was on secondment to a company called CAM Benchmarking Ltd (“CAM”). Throughout that period of secondment, the claimant served as the Managing Director of CAM.  

2.	CAM was a company limited by guarantee.  It had been established at the behest of LEDU for the purpose of carrying out benchmarking services in respect of businesses.  Some of its income came from fees which it charged.  However, the great majority of its income was provided by the public sector.  By 2005, the public sector funding was being provided by INI.  However, INI was being provided with EU grants in respect of most of that funding.   By 2005, the claimant had been alleging for years that INI had not lived up to promises which it had made in funding applications (which had been made at its behest, or on its behalf) to the EU.

3.	In 2004, INI decided that it would cease to provide funds to CAM, on the stated ground that CAM was no longer an appropriate vehicle for the implementation of INI’s aims in respect of benchmarking.

4.	In March 2005, the claimant wrote to the Chief Executive of INI, Mr Leslie Morrison, asserting that he (the claimant) had been underpaid for years.  In the same letter, he threatened to write to various senior officials within the Northern Ireland Civil Service, and the European Union, regarding what he claimed to be malpractice on the part of INI in connection with EU funding which INI had received in respect of the activities of CAM.  Later that month, he carried out that threat.

5.	During the summer of 2005, the claimant was suspended by INI.  Around the same time, INI made contact with the police in respect of some aspects of the claimant’s activities in his role as Managing Director of CAM.  In November 2007, an INI disciplinary panel decided that the claimant should be dismissed.  In January 2008, the claimant was informed that his internal appeal against that decision had been unsuccessful.

6.	In these proceedings, we have been dealing with two separate cases which the claimant has lodged against INI.  Case reference number 423/08 (“Case 1”) was presented in February 2008.  Case reference number 598/08 (“Case 2”) was presented in April 2008.  Those two cases were heard together.  This is our Decision in respect of those cases.

The Acts complained of

7.	In the two claim forms, the claimant made a considerable number of allegations against INI.  However, not all of the relevant actions (which, in this context, must be taken to include omissions) are acts in respect of which compensation is claimed (in this Decision, referred to as “Acts complained of” or as “Acts”).

8.	Early on during the hearing, we took considerable trouble to discuss, with the claimant and with the representatives, the list of Acts (acts in respect of which compensation was claimed).  As a result of those painstaking discussions, the following list of Acts was agreed.  The Acts were as follows:

(1)	The employer’s decision to suspend the claimant;

(2)	the decision to report to the police; 

(3)	the dismissal itself; and

(4)	various alleged procedural unfairnesses in respect of the process which culminated in the dismissal.

9.	In a written submission (“the Submission”) which was presented (on behalf of the claimant, and with his authority) after the conclusion of the hearing, the claimant has sought to add to and modify the list of Acts.  However, that list was discussed extensively, and was freely agreed, during the early part of the hearing:  Examination and cross-examination of witnesses has been pursued in light of that list of Acts.  In the course of the Submission, it was not open to the claimant to modify the list of Acts.  Accordingly, the Acts which are the subject-matter of these proceedings consist only of the matters listed in the last paragraph above.

The causes of action

10.	Originally, in these proceedings, the claimant made a complaint of unlawful discrimination, contrary to the Disability Discrimination Act.  However, the claims under that Act were withdrawn during the early part of the hearing.

11.	Accordingly, in these proceedings,  we are left with two grounds of complaint:

(1)	The claimant claims that his dismissal was an unfair dismissal, in contravention of Article 126 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”).

(2)	He also contends that, by carrying out the “other” Acts (all the acts with the exception of the act of dismissal), INI breached Article 70B of the Order (by subjecting him to detriments by the Acts, those Acts having been done on the ground that the claimant had made a protected disclosure).

12.	The claimant claims that his dismissal was automatically unfair because the reason for the dismissal was that the claimant had made a protected disclosure. 

13.	The claimant claims that, in any event, his dismissal was an “ordinary” unfair dismissal.  Therefore, according to the claimant, the dismissal was “unfair” within the meaning of Article 130 of the Order.

Some key legislative provisions

14.	The effect of Article 70B of the Order is that an employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the employee has made a protected disclosure.

15.	Article 71 of the Order provides that an employee may present a complaint to an industrial tribunal that he has been subjected to a detriment in contravention of Article 70B.  The same Article provides that, on a complaint under that Article, “it is for the employer to show the ground on which any act, or any deliberate failure to act, was done”.

16.	Article 126 provides that an employee has the right not to be unfairly dismissed by his employer.

17.	Article 134A provides that an employee who is dismissed is to be regarded (for the purposes of the unfair dismissals legislation) as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.  (Accordingly, if the sole or main reason for the dismissal is the relevant prohibited reason, the dismissal will be automatically unfair).

18.	“Ordinary” unfair dismissals are dealt with in Article 130 of the Order.  Paragraph (1) of that Article provides that, in determining (for the purposes of that Article whether the dismissal of an employee is fair or unfair, it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal and that it is a potentially fair reason.  The potentially fair reasons are listed in paragraphs (1) and (2) of Article 130.  The potentially fair reasons listed there include a reason which “relates to the conduct of the employee”.  

19.	Paragraph (4) of the Order provides that where the employer has shown the reason (or principal reason) for the dismissal and that it is a potentially fair reason:

“… 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 and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

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

20.	Paragraph (1) of Article 130A of the Order provides that an employee is to be regarded as being automatically unfairly dismissed if certain basic statutory procedures have not been followed.  (It has not been suggested by or on behalf of the claimant that, in this case, the basic procedures envisaged in Article 130A(1) have not been completed, or there has been a failure to comply with the basic requirements of those procedures).  Paragraph (2) of Article 130A is in the following terms:

“(2)	Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure”.

The relevant disclosures

21.	What were the relevant alleged disclosures (“the Disclosures”), for the purposes of the claimant’s claim of automatically unfair dismissal, and for the purposes of his claims of Article 70B detriment?  That matter was settled early on during the hearing, after extensive discussion.  At that time, it was freely accepted by and on behalf of the claimant that the Disclosures consisted of the claimant’s written communications with senior officials of the Northern Ireland Civil Service and with the EU in March 2005.  (Those communications have already been referred to above).

22.	In the course of the Submission (which has already been referred to above), an attempt has been made by and on behalf of the claimant to extend the scope of the communications which constitute the relevant Disclosures.  However, it is not permissible to make such an attempt in the course of a post-hearing submission.  The Disclosures had been specified and agreed at an early stage of the hearing.  The evidence which was presented on each side of the case reflected what was then decided and agreed in respect of the scope of the Disclosures.  Accordingly, for the purposes of these proceedings, the Disclosures consist of the March 2005 communications which have already been referred to above.

The claims and the defences

23.	The following matters arise in the context of the disclosure issue:

(1)	According to the respondent, the Disclosures were not made for the purpose of serving any public interest, and instead were self-serving. (According to the respondent, they were made as part of the claimant’s campaign to receive a pay increase).  Because of our decision on the general merits of the claims, we do not have to arrive at any definitive view in relation to that controversy.

(2)	A disclosure will attract the protection of the legislation (pursuant to Article 70B and pursuant to Article 134A of the Order) only if it is a protected disclosure within the meaning of Article 67A.  The respondent contends that the Disclosures in this case did not fall within the definition of Article 67A.  We do not have to arrive at a determination in respect of that issue, because of our decision on the general merits of these claims.  (See below).

24.	The respondent contends that each of the relevant claims was lodged outside the applicable primary and secondary statutory time-limits.  The claimant asserts that each claim was lodged within the applicable primary statutory time-limit or, if not, within the applicable secondary statutory time-limit.  (See below).  

25.	The respondent contends that the decision to dismiss the claimant was done on the ground that the claimant had carried out acts of misconduct and was not done on the ground that the claimant had made the Disclosures.  The claimant says that the sole ground for the dismissal, or the main ground for the dismissal, was that he had made the Disclosures and that, accordingly, the dismissal is automatically unfair pursuant to Article 134A.

26.	The claimant must be treated as also contending that this was also an “ordinary” unfair dismissal (because, according to the claimant, the employer, in untruthfully asserting that the dismissal was on the ground of conduct, has not shown the true reason for dismissal, and thus has not satisfied the requirements of Article 130(1) of that Order).

27.	Furthermore, a dismissal in retaliation for the Disclosures would probably not be a dismissal for one of the list of potentially fair reasons for dismissal which are set out in paragraphs (1) and (2) of Article 130:  Therefore, a dismissal for such a reason would in any event be an “ordinary” unfair dismissal, because the true main reason was not a potentially fair reason.

28.	The claimant must also be taken to be arguing that, if misconduct was the main reason for dismissal, his dismissal was, in any event, unfair within the meaning of Article 130(4).  In that context, the main arguments on behalf of the claimant are as follows:

(1)	At the relevant time, the employer did not have reasonable grounds for any belief that the claimant was guilty of the relevant misconduct. 

(2)	Because of procedural shortcomings, the dismissal was in any event unfair within the meaning of Article 130(4).

(3)	Dismissal for the relevant offences was a disproportionate sanction, and that disproportionality made the dismissal unfair.

29.	The arguments of the respondents in response to those arguments can be summarised as follows:

(1)	The respondent did have reasonable grounds for its belief in the guilt of the claimant, in respect of each of the relevant alleged acts of misconduct.

(2)	The employer says that, quite apart from the effect of Article 130A(2) (which has been referred to above), any procedural shortcomings were insufficient to render the dismissal “unfair” in the Article 130(4) sense.  In any event, INI claims the protection of Article 130A(2), and asserts that it has shown that they would have decided to dismiss the claimant even in the absence of any relevant procedural shortcomings.

(3)	Dismissal for the relevant proven acts of misconduct was an entirely proportionate sanction.  

30.	In relation to the Article 70B (detriments) claims, the positions of the parties are as follows.  The claimant claims that each of the relevant Acts was done on the ground that the claimant had made the Disclosures.  The respondent says that each relevant Act was appropriate, and that no relevant Act was done on the ground that the claimant had made the Disclosures.

Sources of evidence and the submissions

31.	On the claimant’s side of the case, we received oral testimony from the claimant himself and from Dr Alan Neville (who, during the relevant period, was the claimant’s boss within INI, and who was also, throughout that period, a non-executive director of CAM).

32.	On the respondent’s side of the case we received oral testimony from Mr Jeremy Fitch (who had been the chairman of the relevant internal disciplinary panel) and from Mr Morrison (who was the decision-maker at the appeal stage of the internal disciplinary procedure and who, at the relevant time, was the Chief Executive of INI).

33.	We saw:

(1)	seven bundles of documents which, in the aggregate, consisted of many hundreds of pages; and

(2)	various miscellaneous documents which were provided to us by the parties during the course of the hearing.

	We told the parties that we would only have regard (for evidential purposes) to any document within any bundle if our attention had been specifically drawn to that particular document.

34.	At the conclusion of the hearing, Mr Mulqueen (on behalf of INI) presented his arguments by way of oral submission.  At the conclusion of the hearing Mr Hanvey (on behalf of the claimant) also presented oral arguments.  However, Mr Hanvey was keen to supplement those oral arguments through a written submission (“the Submission”), which he would provide to the Secretary of the tribunals after the conclusion of the hearing, with a simultaneous copy being provided to the respondent.  With the agreement of Mr Mulqueen, we accepted those arrangements, on the basis that Mr Mulqueen would have the opportunity to provide written comments (“Comments”) in relation to that Submission within a specified period thereafter.  It was agreed that, if any party thereafter required an oral hearing for the purpose of providing further oral arguments, an oral hearing would be held.  Mr Mulqueen was content to rely upon his oral arguments and did not ask for permission to present any (written) post-hearing Submission.

35.	The agreed arrangements were followed by the parties.  A Submission was subsequently provided by Mr Hanvey.  Comments in relation to that Submission were received thereafter from the respondent.  Neither party asked for a subsequent additional oral hearing in respect of arguments. 

36.	In this Decision, specific reference has been made to some of the arguments of the parties.  The Submission and the Comments provide a permanent record of many of the main arguments which were made on behalf of the parties.  In the circumstances it is unnecessary, in this Decision, to provide comprehensive details of all of the arguments.   In this Decision, we have drawn attention to some of the main arguments of the parties on both sides of the case.  However, we have paid due attention to all of the arguments, of both parties, regardless of whether or not any particular argument has been mentioned in this Decision.

37.	In granting permission for the presentation of the Submission and of the Comments, we made it clear that the purpose of a submission is to comment on the evidence already given, and to present arguments, and that it could not be used to provide additional evidence.  Accordingly, in considering the evidence in this case, we have taken full account of the fact that the content of a Submission or Comments cannot provide an evidential basis for any factual contentions.
The time-limits

38.	Under this heading, we set out certain facts which are particularly relevant in the context of the time-limits issues; we also set out details of some of the relevant arguments, some applicable principles of law, and our conclusions on the time-limit issues.  Because of the conclusions which we have arrived at in relation to the merits (liability) issues, we can deal with the time-limits aspect of the matter relatively briefly.

39.	As already mentioned above, the respondent says that all of the claimant’s claims should be dismissed because each claim was brought outside the relevant primary and secondary time-limits.

40.	The statutory provisions dealing with Article 71 complaints (complaints in respect of Article 70B anti-detriment rights) are provided for in Article 71 of the 1996 Order.  Statutory provisions in respect of the time-limits applicable in respect of unfair dismissal are to be found at Article 145 of the Order.

41.	Accordingly, different statutory provisions govern the time-limits in respect of the unfair dismissal and in respect of the other claims.  However, in each instance, the statutory provision consists of a primary time-limit and a secondary time-limit.  

42.	The time-limits in respect of Article 70B claims are to be found at paragraphs (3) and (4) of Article 71.  Article 71 (3) is in the following terms:

“(3)	An industrial tribunal shall not consider a complaint under this Article unless it is presented-

(a)	before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or

(b)	within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before that period of three months.”

43.	Accordingly, Article 71(3) provides for the following:

(1)	A primary time-limit of three months which begins either on the date of the relevant act or omission or (where that act or omission is part of a series of similar acts or omissions) the last such act or omission.

(2)	There is a secondary time-limit, which consists of such further period as the tribunal considers reasonable, if the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the primary time-limit.

44.	We regard Melia v Magna Kansei Ltd [2005] EWCA Civ 1547, especially at paragraph 34, as authority for the proposition that all claims in respect of retaliatory detrimental acts, other than a claim in respect of the dismissal itself, can be regarded as being brought under Article 70B (as distinct from falling within the scope of Article 125 of the Order, which creates the right not to be unfairly dismissed).  Therefore, we regard the claimant’s complaints in respect of the alleged procedural shortcomings which occurred during the investigatory and disciplinary process, up to and including the complaint in respect of the handling by Mr Morrison of the disciplinary appeal, as constituting complaints under Article 70B (as distinct from being aspects of the Article 125 complaint of unfair dismissal).  

45.	We have noted that Article 171(3)(a) provides that, in the case of a series of “similar acts or failures”, the primary time-limit expires at the end of the period of three months beginning with the date of the last of the acts or omissions.  We think that Arthur v London Eastern Railway Ltd [2007] IRLR 58, especially at paragraph 35 of the judgment of Mummery LJ, provides support for the proposition that a set of acts can be regarded as a series of “similar acts or failures” even if the only common features are the identity of the perpetrators and the ground on which each act was allegedly carried out.

46.	In this case, if we look at all of the Acts, the claimant is alleging that the same perpetrator (INI) is responsible for all of them, and that they were all carried out on the ground that he had made the Disclosures.  In our view, that is sufficient to make all of the Acts (with the exception of the actual dismissal itself) part of a series of “similar acts or failures”.  Therefore, in respect of all of the Article 70B detriments, the primary time-limit began in January 2008 (when Mr Morrison dismissed the claimant’s internal appeal against dismissal).

47.	Therefore, all of the claimant’s Article 70B complaints can be regarded as having been presented within the primary time-limit.  (The claimant’s first claim was presented on 22 February 2008, and Case 2 can be regarded as merely complementing the information which was contained in Case 1).

48.	According to the respondent, the effective date of termination of the claimant’s employment was 14 November 2007.  If that is correct, Case 1, (which contains an explicit complaint of unfair dismissal, and which was presented on 22 February 2008) was presented approximately a week after the expiration of the primary time-limit.

49.	The claimant asserts that it was not reasonably practicable for him to present his unfair dismissal claim any earlier, for two reasons:

(1)	First, he says that he did not know about the time-limits, and had no reasonable grounds for knowing about the time-limits. We reject that “reasonable ignorance” argument.  

(2)	Secondly, he says that it was not reasonably practicable for him to have presented his claim within the primary time-limit because he was suffering from a stress-related illness at the time.  We accept that the claimant was suffering from stress at that time.   We note that he had been certified as being unfit for work at that time by his GP.  We note that stress can cause people to make mistakes.  Therefore, we accept that, because of stress, it was not reasonably feasible for the claimant to present his claim within the period of three months which ended on or about 14 February 2008; and we consider that the immediately following period of approximately one week (which began on 14 February 2008) was a “further” period which was “reasonable” (within the meaning of Article 145(2)(b) of the Order). 

	Accordingly, although the complaint of unfair dismissal was not presented within the primary time limit, it was presented within the secondary time limit.

The facts

50.	In order to minimise duplication, and in the interests of readability, we have set out certain findings of fact elsewhere in this Decision.  However, in this part of the Decision we set out various findings of fact which are relevant to questions which we have determined:

(1)	CAM Benchmarking is a company limited by guarantee which was funded almost entirely from the public purse. 

(2)	In 1994 the Local Economic Development Unit (“LEDU”), in partnership with the Northern Ireland Economic Research Council, began work to establish a benchmarking service for Northern Ireland.  This was in reaction to a need identified by LEDU for a source of comparative information upon which businesses on agencies could base decisions.

(3)	The claimant, at that time a Grade 7 in LEDU, moved across to NIERC to take the initiative forward.  IN 1997, CAM Benchmarking Ltd was formed to take the work forward.  The company had three Directors.  The claimant was at all material times the Managing Director.  As such, he was the only Director with executive (as distinct from not merely non-executive) responsibilities.  Another Director was Dr Alan Neville.  (When Dr Neville was originally appointed to the board, he was the Corporate Services Director of LEDU.  Subsequently, he held a senior post in INI).

(4)	Originally, the third Director was a Mr McCann from the Department of Economic Development.  However, he subsequently resigned as a Director and was replaced in February 2003 by Professor Patrick McNamee of the University of Ulster.

(5)	LEDU funding applications (in respect of CAM) were successfully made to the EU on several occasions.

(6)	Responsibility for the funding of CAM transferred to INI in April 2002, following that agency’s creation.  INI had accountability in respect of the funding application which was made to the EU in 2002.

(7)	The total amount of public funds involved in the funding of the company was of the order of £1.75 million.  

(8)	In the early years of this decade, there was a scandal involving “Into the West”, an entity for which INI had responsibility.  As a result, INI initiated an exercise to look at the funding and contractual arrangements it had in place with a number of “third party” organisations.

(9)	Consultants were engaged to examine a sample of thirty of the largest (in funding terms) of these.

(10)	There was a dispute between the parties as to whether CAM was a “third party” organisation, in the sense in which that term was used for the purposes of that sample.  However, regardless of the proper outcome of any debate on that issue, we are satisfied that the risks which existed in relation to conventional third party organisations were risks which existed, in equal measure, in relation to CAM.  Therefore, it was entirely appropriate for CAM to be included in the sample.

(11)	In the spring of 2005, an accounting firm, KPMG, was appointed to carry out an inspection of CAM (as part of the sample which we have referred to already above).

(12)	By early 2003, the claimant was in controversy with the employer in relation to his salary.  He contended that he was being underpaid.  There were lengthy negotiations in relation to his pay and grade.  In correspondence with the employer, he made a substantial written claim for back pay, amounting to substantially more than £100,000.

(13)	In April 2004, the Business Improvement Services Division of INI “formally” ceased to use CAM’s services for the provision of benchmarking and replaced it with the DTI benchmarking services.    In late 2004, INI decided that it would no longer provide core funding for CAM after March 2005.  The Board of CAM were formally informed of that decision in December 2004.

(14)	The Board of CAM decided that it would close its operations in March 2005.  (It had no option but to do so).

(15)	During March 2005, the claimant made the Disclosures.  However, his correspondence with Mr Morrison in March 2005 was not the first occasion on which he had threatened to make a complaint to the EU.

(16)	In May 2005, Ms Nuala Hewitt-Dundas spoke to Mr Liam Hagan, the Human Resources Director of INI, and made allegations about the conduct of the claimant.  The allegations were as follows:

(a)	The claimant contacted her on 25 April 2005.  She was not at home.  Her husband took the call and told the claimant that she was going to Barcelona later that day.  When she returned home, she returned the call.  The claimant said he was looking for a favour from her.  He said that CAM was being severely audited.

(b)	He said there were some payments made by CAM, and while there were receipts to back up all of these, there were a number for which he had signed but there was no counter-signature.  He said there were about 6 or 7 of these.

(c)	The claimant said that he had been phoning to see if Ms Hewitt-Dundas would counter-sign these, but she was not to worry as he knew that she was going off to Barcelona, so he had just forged her signature and wanted to let her know.  He joked that the forgeries were not very good and that if anyone asked her about them, she could just say that she had a sore hand on the day she signed them”.

The claimant accepted that those allegations were indeed made by Ms Hewitt-Dundas. Those allegations were outside the scope of the disciplinary process to which the claimant was subjected.

(17)	INI made KPMG (who were already engaged in the sample exercise referred to above) aware of the Hewitt-Dundas allegations.  In early June 2005 KPMG produced a draft report.  The report suggested there had been substantial irregularities in the way public funds had been expended by CAM Benchmarking.

(18)	On 8 June 2005, Mr Hagan made the claimant aware of the Hewitt-Dundas allegations and of the fact that the KPMG audit was alleging that there had been a number of “potential irregularities”.  At that same meeting, the claimant was informed that he was being suspended, on full pay, pending the outcome of a disciplinary investigation.

(19)	KPMG was then initially commissioned to carry out a detailed investigation of the books and records of CAM for various periods of its operation.  The draft report on that exercise concluded that there had been a lack of proper internal controls within CAM and identified what appeared to be a large number of irregularities.

(20)	The work of KPMG was subsequently extended to cover the entire period of CAM’s operation.  This resulted in a further report, which was provided to INI in January 2006.  The relevant matters were brought to the attention of the police.  Mr Mel Chittock (who was later to be in charge of the disciplinary investigation) was the person who liaised with the police on the matter.  He was also the signatory of a witness statement dated October 2006, from which much of the contextual detail, as set out above, has been gleaned.  According to Mr Chittock’s statement, the position was as follows:

					“Apart from the anxiety generated by the overall lack of control in CAM the above includes a number of issues around the potential double claiming of expenses, the inappropriate use of the company credit card, inappropriate and undeclared third party transactions and, generally, the inappropriate use/misuse of public funds”.

(21)	In January 2006, Dr Neville was suspended. Subsequently, after a disciplinary process, he was demoted.  Later still, he retired.

(22)	According to the Chittock police statement, when INI received the January KPMG report:

“…Invest NI then alerted DETI (its parent Department) and the Northern Ireland Audit Office of the findings of the report.  In accordance with its Fraud Response Plan, it also asked the Police Service of Northern Ireland to consider the report with a view to determining if a criminal investigation was warranted”.

(23)	In fact, PSNI did conduct a lengthy criminal investigation into at least some of the relevant matters.  The ultimate outcome of that investigation was that the Public Prosecution Service decided that there should be no criminal prosecution.  That decision was made in November 2008.

(24)	The claimant continued to be suspended, with full pay, until the end of his period of employment with INI.

(25)	Mr Chittock carried out the disciplinary investigation in respect of the claimant.  In December 2006, in that capacity, he met with the claimant and with the claimant’s representative.

(26)	The outcome of his investigation was that he considered there to be a case to be answered in relation to a number of disciplinary charges.  In our view, his conclusions in that regard were very much in line with the evidence which was available to him.  

(27)	According to the respondent’s disciplinary procedure, the initial decision on disciplinary matters was to be made by a Disciplinary Panel.  That Panel was chaired by Mr Jeremy Fitch. 

(28)	The disciplinary allegations are set out below, as part of our “Conclusions”.

(29)	The Disciplinary Panel decided that the claimant should be dismissed.

(30)	He appealed against that dismissal, to Mr Morrison.  That appeal was unsuccessful.  Mr Morrison upheld the original decision to dismiss.  In effect, the internal disciplinary appeal was by way of a re-hearing.  

(31)	Between the date of his suspension, and the date of termination of employment, the claimant launched several internal grievances in relation to the conduct of various individuals.  The people who were the subject of his grievances included Mr Chittock and Mr Morrison.

(32)	As the claimant points out, INI did not address some of his grievances at all.  According to the claimant, those which were addressed were not adequately addressed.  The claimant says that those omissions and those inadequacies provide evidence which should help the tribunal to conclude that all his claims, in these proceedings, are well-founded.  (He says that those omissions and those inadequacies are an indicator of bias).

(33)	We are satisfied that the dismissal outcome was fair and that the dismissal process was generally conducted fairly. Having arrived at those conclusions, we do not find it necessary to consider, in any detail, the rights and wrongs of the controversies which have arisen, between the claimant and INI, in respect of his various grievances.

(34)	We note that the claimant was critical of certain aspects of the conduct of one of the individuals within KPMG who had responsibility in relation to the relevant work of KPMG.  We note that he made a complaint to the relevant individual’s relevant professional body in relation to those matters. 

51.	We carefully considered the demeanour and manner of giving evidence of all of the witnesses.  We compared the testimony of each witness with the known facts.  We had regard to the internal consistency of each witness’s evidence.  We had regard to the inherent probabilities, or improbabilities, of the accounts of events which each witness was giving.  Having done so, we concluded that both Mr Fitch and Mr Morrison were accurate and truthful witnesses, but we were unable to arrive at a similarly favourable conclusion in relation to the claimant.  (See, in particular, the last paragraph of this Decision).

The law (liability issues) 

52.	In our view, for the purposes of Article 70B, an employee is subjected to a detriment “on the ground that” he has made a protected disclosure, if the making of the protected disclosure has caused or significantly influenced the employer to act (or not to act) in the way complained of. In other words, the making of the protected disclosure does not need to be the sole or even the principal cause of the relevant act or omission, so long as it has had a significant influence in that connection. 

53.	As already indicated above, a dismissal for misconduct is a potentially fair reason for dismissal in the context of Article 130A of the Order.  

54.	Two matters are of considerable importance in the context of our task of deciding whether or not a dismissal is “unfair” within the meaning of Article 130(4):

(1)	The dismissal cannot be regarded as being unfair unless, by dismissing the claimant for the relevant reason, the respondent acted “outside the range of reasonable responses”.

(2)	Even if the dismissal would potentially have been outside the range of reasonable responses because of procedural shortcomings (whether in the course of the investigatory process or in the course of the disciplinary adjudication process), the dismissal will not be unfair merely for that reason if the employer shows that it would still have decided to dismiss the claimant, if there had been no procedural shortcomings.

55.	The concept of the range of reasonable responses can be summarised as follows.  First, the tribunal must not step into the employer’s shoes. What this means is that the tribunal must not decide what it would have done itself in the circumstances of the case and that, instead, the tribunal must decide whether the employer acted reasonably.  Secondly, the test as to whether an employer has acted reasonably is an objective test, and the tribunal has to be guided by the fact that in many cases there are a variety of  responses open to an employer and that, provided the dismissal was within the limit of that range of responses, the dismissal will be fair.  Thirdly, the function of the tribunal, as an industrial jury, is to determine whether, in the particular circumstances of the particular case, the decision to dismiss the employee fell within the range of reasonable responses (which a reasonable employer might have adopted).  If the dismissal falls within that band, the dismissal will be fair for the purposes of Article 130(4); it is only if the dismissal falls outside the band that it will be unfair for the purposes of that Article. 

56.	In the context of Article 130(4), in considering the test of fairness which is referred to at that paragraph, the main issues for a tribunal are as follows:

(1)	At the time of the dismissal, did the employer genuinely believe that the employee was guilty of the relevant misconduct?

(2)	At that time, did the employer have reasonable grounds for that belief?

(3)	Subject to the effect of Article 130A(2), the question of whether or not there were significant procedural shortcomings is also important.  

(4)	The proportionality, or otherwise, of the sanction of dismissal is also a significant issue.

57.	The concept of the range of reasonable responses applies to all aspects of the dismissal, including the investigatory and the adjudicatory process.

58.	In considering whether procedural shortcomings make a decision unfair, we must have regard to the size and administrative resources of the employer. (See Article 130(4) of the Order).

59.	The provisions of an internal disciplinary procedure are not determinative of the issues before a tribunal. 

60.	Subject always to the effect of Article 130(A)(2), an employer will generally not act fairly (within the meaning of Article 130(4) of the Order) if the relevant employee does not know the nature of the accusations against him, or if he is not given an opportunity to state his case, or if the internal disciplinary authority is not acting in good faith.  

61.	Quite apart from the potential effect of Article 130A(2), it must be borne in mind that the second stage of any disciplinary procedure is designed, in part, to correct any shortcomings at the first stage of the disciplinary procedure. 

62.	Therefore, quite apart from the effect of Article 130A(2), any procedural shortcoming at the first stage of a disciplinary process can, potentially, be corrected (by acts, by omissions, and by decisions arrived at) during the internal appeal stage of that process. In determining whether procedural shortcomings have, or have not, put the decision to dismiss outside the range of reasonable responses, a tribunal is entitled and obliged to look at the fairness or unfairness of the procedures adopted as a whole, and is obliged  to consider whether the overall process was fair. 

63.	In Alexander v Brigden Enterprises Ltd [2006] ICR 1277, Elias P analysed the scope of Article 130A(2) of the Order.  On the basis of that decision, it is clear to us that, in cases to which it applies, Article 130A(2) will prevent a dismissal from being unfair, regardless of any lack of procedural fairness on the part of those who investigated or decided during the course of the disciplinary process, if the employer shows to the tribunal that he would have fairly dismissed the claimant in the absence of such shortcomings.

64.	A dismissal will be regarded as being an unfair dismissal (for the purposes of the unfair dismissals legislation) if the requirements of 134A are met.  Article 134A is in the following terms: 

“An employee who is dismissed shall be regarded for the purposes of [the unfair dismissal legislation] as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure”.

65.	Of course, if the requirements of Article 134A of the Order are met, the following are irrelevant:

	     	 (1) 	the range of reasonable responses; 

			 (2) 	the general test of fairness in Article 130; and 

	      (3) 	the provision in Article 130A(2) of the Order (relating to cases in which the employer has shown that, in the absence of relevant procedural shortcomings, it would still have decided to dismiss the employee). 

Conclusions (liability issues)

Suspension

66.	We are satisfied that the making of the Disclosures was not a cause, or significant influence, in connection with INI’s decision to suspend the claimant.  We have arrived at that conclusion mainly on the following ground.  We are satisfied, that in view of the gravity of the disciplinary charges, most reasonable employers would have suspended the claimant at the time when he was suspended by INI.

	Involving the police

67.	We are satisfied that the making of the Disclosures was not a cause, or significant influence, in connection with INI’s decision to make the relevant report to the police regarding the claimant’s conduct.  

68.	We have arrived at that conclusion mainly on the following ground.  The claimant has not asserted that Ms Hewitt-Dundas was in any way motivated by a desire to retaliate against the claimant on account of the Disclosures.   In view of the seriousness of her allegations, it was entirely appropriate for the matter to be referred to the police.   Indeed, arguably, it would have been inappropriate for INI to have failed to report the matter to the police.

Ordinary unfair dismissal

69.	It is convenient next to consider whether or not this dismissal was an “ordinary” unfair dismissal (a dismissal which was unfair within the meaning of Article 130 of the Order), before going on to consider whether or not the dismissal was an automatically unfair dismissal pursuant to Article 134A, or whether defects in the disciplinary process constituted unlawful detrimental treatment, contrary to Article 70B of the Order.

70.	The claim in respect of “ordinary” unfair dismissal must be dismissed, for the following reasons and against the following background.

71.	On the basis of the evidence of Mr Fitch and Mr Morrison, we are satisfied that, at each stage of the internal disciplinary process, the sole reason for dismissal was the employer’s belief that the claimant was guilty of misconduct which had been alleged (during the course of the disciplinary process) against him.  That is a potentially fair reason for dismissal.

72.	We reject the claimant’s allegations of procedural unfairnesses in relation to the work of Mr Chittock (in the context of the investigatory process which was part of the disciplinary process).  First, the fact that Mr Chittock was the person responsible for liaising with the police (in the context of the criminal investigation) did not make it inappropriate for him to carry out the investigation.  Secondly, Mr Chittock had not become an inappropriate person to conduct the investigation merely because he had been involved, in his role as a public officer, in seeking to achieve an orderly termination of the activities of a publicly funded company (CAM).  Thirdly, in general, Mr Chittock’s investigatory report was a fair summation of the disciplinary evidence which was then actually available to INI (evidence other than evidence which, because of the ongoing criminal investigation, was to be left out of account when conducting the disciplinary procedure).

73.	It will be recalled that, in considering whether a “misconduct” dismissal is unfair within the meaning of Article 130(4), the following matters have to be considered.  First, the tribunal has to be satisfied that the main reason for the dismissal was that the employer believed that the claimant was guilty of relevant misconduct.  Secondly, dismissal on that ground must have been within the range of reasonable responses open to a reasonable employer.  

74.	In considering whether or not the dismissal was, or was not, in that range of reasonable responses, the following matters must be taken into account:

(1)	the sufficiency, or otherwise, of the evidence available to the employer as the foundation for its belief in the guilt of the claimant;

(2)	any shortcomings in the investigatory or disciplinary process, but bearing in mind the effect of Article 130A(2) of the Order (see above); and

(3)	the proportionality, or otherwise, of the penalty decided upon.

75.	We propose to look at those matters in two stages.  First, we will look at those matters in the context of the determinations which the Disciplinary Panel made.  Secondly, we will look at those matters in the context of the determinations which Mr Morrison made (in his role as the second stage internal disciplinary decision-maker).

76.	We now need to look at the nature and structure of the disciplinary allegations (the allegations which the claimant was facing during the course of the disciplinary procedure) in some detail:

(1)	According to a letter dated 12 November 2007 (from Mr Fitch to the claimant), there were three allegations against him: Allegation I, Allegation II and Allegation III.

(2)	Allegation I purports to be a single allegation, but in reality consists of four different allegations.  Allegation I was as follows:

“[You breached] your duty to ensure that CAM Benchmarking Ltd operated proper systems of accounting and governance for appropriate dispersement of company and public funds by:

(a)	Disregarding the delegation levels for cheque signatures by paying invoices over £250 by means of two or more separate cheques

(b)	Approving and paying your own expenses without countersignature by another member of staff

(c)	Providing inadequate or no documentation to support a number of credit card payments

(d)	Failing to ensure that receipts in respect of petty cash expenditure were appropriate and/or adequate.”

(3)	In our view, Allegation I consists of four separate allegations, which we refer to as Allegation I(a), Allegation I(b), Allegation I(c) and Allegation I(d) respectively.

(4)	Allegation II was as follows:

	“[You misused] the name of CAM Benchmarking Ltd by placing advertisements in local newspapers in the company’s name for purposes which were unrelated to the business of CAM Benchmarking Ltd, and failed to reimburse CAM Benchmarking Ltd in respect of the costs of these advertisements”.

(5)	Allegation II really consists of two separate allegations.  First, there is an allegation relating to the placing of advertisements.  We refer to that allegation as Allegation II A.  Secondly, there is the allegation that the claimant failed to reimburse CAM in respect of the costs of the advertisements.  We refer to that allegation as Allegation II B.

(6)	Allegation III was in the following terms:

“[You failed] to declare a conflict of interest when you arranged the relocation of CAM Benchmarking Ltd to premises of Wellington Park which were owned by Axis Enterprises Ltd, a company of which you were a Director at the time, and failed to declare this related party transaction in the statutory accounts of CAM Benchmarking Ltd”.

(7)	Allegation III really consists of two separate allegations. The first of those allegations, which we refer to as Allegation III A, is that the claimant failed to declare the relevant conflict of interest.  The second allegation, which we refer as Allegation III B, is that the claimant failed to mention and identify the relevant transaction in the statutory accounts of CAM.

(8)	The claimant “admitted” the acts (but not necessarily the alleged implications of the acts) which are the subject-matter of four of the eight allegations.  The “Admitted” Allegations were Allegations I(a), I(b), II A and III B.

(9)	The factual basis for each of the other four allegations (Allegations I(c), I(d), II B and III A) was contested by the claimant.

(10)	Of the four fully contested allegations, Allegation I(c) and I(d) are fact-sensitive.  Because of our determinations on other matters, we have not found it necessary to examine the sufficiency, or otherwise, of the evidence which was available to the employer in respect of Allegations I(c) and I(d).

77.	In the following paragraphs: 

(1)	We first deal with the “Admitted” Allegations.  

(2)	We then deal with Allegation III A (the allegation that the claimant did not disclose, to Dr Neville or to Professor McNamara, his interest in the premises at Wellington Park).  (We regard Allegation III A as by far the most serious of the allegations).

(3)	Later, we comment on the implications of the failure of the respondent (at both stages of the internal disciplinary process) to properly address Allegation II B (the alleged failure to reimburse CAM in respect of the cost of the advertisements).

78.	The Disciplinary Panel considered all of the “Admitted” Allegations to be well founded.

79.	First, in relation to each of the Admitted Allegations, we consider whether the employer had sufficient evidence to sustain its belief that the relevant allegation was well founded:

(1)	Allegation I(a) related to paying invoices in excess of £250 by means of two or more separate cheques.  The claimant admitted doing so, but asserted that, by doing so, he had not breached the relevant CAM internal control.  

(2)	Allegation I(b) related to paying the claimant’s own expenses without counter-signature by another member of staff.  Again, he accepted that this allegation was factually accurate.  Accordingly, no question of insufficiency of evidence arises in connection with this allegation.

(3)	Allegation II A is the allegation that the claimant had misused the name of CAM by placing advertisements in local newspapers for purposes which were unrelated to the business of CAM.  Again, the accuracy of the factual basis for this allegation was accepted by the claimant, who also accepted that he had paid for the advertisements using CAM money.

(4)	Allegation III B was an allegation that the claimant failed to mention the relevant interest (relating to his connections with Axis, in the context of the Wellington Park lease) in the statutory accounts of CAM.  The claimant accepted the factual accuracy of that allegation.  However, the claimant stated, throughout the disciplinary process, that he simply did not know that there was an obligation to mention the interest in the statutory accounts.

80.	Having noted that the claimant accepted the factual basis for those four Allegations, we are satisfied that the Panel had an adequate evidential basis upon which to find the Admitted Allegations to be proven.   In relation to Allegation I(a), which related to paying larger invoices by means of two or more separate cheques, there was controversy, during the course of the disciplinary procedure, on the question of whether or not the claimant’s actions had involved a breach of “the spirit and substance” of the  relevant CAM policy.  At each stage of the internal disciplinary process, it was decided that this allegation was well-founded.  In our view, the Disciplinary Panel and Mr Morrison had good grounds for that conclusion.  (We agree with the claimant’s assertion that the relevant control was not intended to limit his powers of expenditure; an officer of his rank, in the public service, would have spending limits very much in excess of £250.  However, it seems to us to be equally clear that the purpose of the relevant policy was to make sure that one director of CAM would not be able to give business, in the context of a “larger” transaction, to a particular supplier, or to a particular service-provider, without the enforced transparency that a two-signatory requirement imposes).

81.	We are satisfied that there were no significant deficiencies of process which affected the disciplinary process in the context of the Admitted Allegations.  Prior to the termination of the disciplinary process, the claimant did not know what was in the KPMG reports.  However, the employer had good reason for withholding that report (because of the ongoing criminal investigation).  Furthermore, because the claimant admitted all the acts, on his part, which provided the factual basis for this group of Allegations, the lack of availability of the KPMG reports did not affect his ability to adequately address those Allegations.

82.	The claimant had a very lengthy record of service, without any disciplinary blemishes. In considering the implications of the Admitted Allegations, any reasonable employer will have taken account of that record.  We are satisfied that the Disciplinary Panel did take that record into account.  The Panel knew that, when these offences were committed, the claimant was suffering from a relatively mild stress-related illness.  The Panel did take that circumstance into account.  (However, the placing of the advertisement in the name of CAM clearly involved deceitful conduct, and the Panel had no basis for believing that the claimant’s condition had any relevant effect in the context of such conduct).  We are also satisfied that the Disciplinary Panel was aware that the instances of I(a) and I(b) misconduct were few in number.

83.	In deciding on the appropriate penalty, any reasonable Panel would also have had regard to the claimant’s attitude to the allegations.  The claimant’s attitude to the Admitted Allegations was as follows.  First, he denied that the Panel had any right to adjudicate in respect of the relevant conduct.  (The relevant matters, according to the claimant, were matters only for the Board of CAM).  Secondly, he thought that all these matters were relatively trivial matters.

84.	Against that background, it seems to us that some reasonable employers, indeed many reasonable employers, would have concluded (solely on the basis of the Admitted Allegations), especially in light of the claimant’s attitude to the relevant disciplinary offences, that dismissal was the appropriate sanction.

85.	The outcome of the internal disciplinary appeal was that Mr Morrison, like the Disciplinary Panel, found all of the Admitted Allegations to be well founded.  He had a sufficient evidential basis for those conclusions, just as the Panel had had a sufficient evidential basis, before him (for the Panel’s conclusions in relation to those allegations).

86.	According to the claimant, Mr Morrison ought not to have heard the disciplinary appeal, because Mr Morrison had been the subject of a grievance which the claimant had brought against him.  We reject that proposition.  In our view, in the context of the internal disciplinary proceedings, rules in relation to apparent bias have to be considered from a pragmatic perspective.  It would be all too easy for an unscrupulous employee to frustrate a potential internal disciplinary process by contriving to have a grievance against a potential disciplinary decision-maker.  Furthermore, senior officials of major bodies must recognise that, from time to time, they will be criticised, whether justly or unjustly, but will nonetheless have to treat their critics fairly.

87.	The Disciplinary Panel decided that the claimant should be dismissed.  Mr Morrison also decided that the claimant should be dismissed.  As already stated above, in our view, a reasonable employer, considering only the Admitted Allegations, would not go outside the range of reasonable responses if it decided that a dismissal was the appropriate sanction in respect of the misconduct which is the subject matter of those allegations, especially in light of the claimant’s attitude to those matters.

88.	Thus far, we have not considered how the internal disciplinary authorities addressed Allegation III A.  We do so in the following paragraphs.

89.	It will be recalled that Allegation III A was that the claimant failed to declare a conflict of interest (to Dr Neville or to Professor McNamee) when he arranged the relocation of CAM to premises at Wellington Park which were owned by Axis Enterprises Ltd. 

90.	In its dismissal decision letter, the Disciplinary Panel criticised the claimant for failing to “thoroughly document and formally register” his interest in the relevant property.  However, any general failure to document or to register was not the subject of a disciplinary allegation.  Therefore, this failure could not properly provide even partial support for any decision to dismiss the claimant (unless, perhaps, as an aggravating factor in the context of some proven and legitimate disciplinary allegation). 

91.	Furthermore, the claimant was entitled to expect the Panel to adjudicate on the real Allegation III A (the alleged failure to actually disclose, as distinct from any failure to document or to record any disclosure).  This wasn’t done.  The Panel left the matter open.  They neither found the claimant guilty of Allegation III A, nor found him innocent of that charge.

92.	The result was that, when the matter went to Mr Morrison on appeal, Allegation III A was still a live allegation.  Mr Morrison found him guilty of the real Allegation III A.  (That is clear from Mr Morrison’s comment, at paragraph 14 of the dismissal appeal letter, that one would expect to find the relevant information, relating to the claimant’s interest, within  the document which had proposed the relocation, but there had been no mention of that interest in that document).

93.	As mentioned above, in considering whether or not an employer acts reasonably or unreasonably (in dismissing in response to a particular disciplinary allegation), three matters have to be looked at.  First, the sufficiency of the evidence which provides the foundation for the relevant belief (the employer’s belief that the claimant is guilty of the relevant misconduct); secondly, any procedural flaws; and, thirdly, whether or not dismissal was a disproportionate sanction in the circumstances.

94.	In our view, there was adequate evidence, on the basis of what Mr Morrison knew at the time of the disciplinary appeal, for Mr Morrison’s belief that the claimant had failed to declare his interest.  The available evidence included the cumulative effect of the following:

(1)	Professor McNamee and Dr Neville had both denied that the claimant had disclosed the interest to them.  (Neither Professor McNamee nor Dr Neville was a disinterested witness on the question of whether or not there had been a disclosure to himself.  But the claimant was not a disinterested witness either.  It could be argued that both Professor McNamee and Dr Neville had been shown to be inaccurate in their respective accounts of what they had known about CAM credit card payments.  However, the employer also knew that the controversial CAM advertisements, which were the subject-matter of Allegation II A, contained significant factual inaccuracies for which the claimant had been knowingly responsible).

(2)	During the investigatory interview, the claimant had not suggested that he had notified anybody in writing about his interest in the property.  The alleged written notification (the alleged note to Dr Neville) was mentioned during the course of the hearing before the Disciplinary Panel.  

(3)	The claimant had been vague in his accounts of the precise of the alleged disclosures, while being very specific about many other matters.

(4)	As Mr Morrison pointed out in his dismissal appeal letter, the document proposing the relocation would have been the logical place in which to mention the claimant’s interest, but the information was absent from that document.

(5)	The claimant was asserting that he could not even remember whether or not the written disclosure, allegedly sent to Dr Neville, was sent on paper or by email.

95.	In the context of Allegation III A, the claimant’s main criticism on procedural matters was the alleged failure on the part of the employer to check Dr Neville’s laptop (with a view to ascertaining whether or not Dr Neville did, or did not, receive the email which, according to the claimant, he may have sent to Dr Neville by way of written disclosure).  We consider that criticism to be unjustified, against the following background and for the following reasons.  First, there was no relevant unfair differential treatment.  Dr Neville had not been accused, by an external whistle-blower, of misconduct of a fraudulent nature, whereas the claimant had been so accused (by Ms Hewitt-Dundas; see above).  Secondly, the question of whether or not a relevant email could be found on Dr Neville’s laptop was a question which first came to prominence in the context of the disciplinary hearing, at a time when Dr Neville had already retired.  Thirdly, we are satisfied that proportionate efforts were then made by INI, to make a search of available computer records relating to any such correspondence.

96.	In our view, the fact that the KPMG reports were unavailable to the claimant had no significant effect on the claimant’s ability to defend himself against Allegation III A.

97.	If Allegation III A had been the only allegation against the claimant, or the only proven allegation against the claimant, would the respondent have been acting within the range of reasonable responses in deciding to dismiss him for that offence?

98.	In our view, the answer to that question is entirely clear.  Of course, it would have been within the range of reasonable responses to dismiss the claimant for that offence.  Indeed, in our view, in the circumstances of this case, an employer who failed to dismiss an employee for that offence would be acting outside the range of reasonable responses.  Why?  For the following reasons, and against the following background.

99.	First, there are some mitigating factors.  The claimant had a lengthy record of service and a clear disciplinary record; but any reasonable employer would regard this offence as one involving dishonesty and serious impropriety.  The implications of the allegation are that a public servant, who has substantial influence over a publicly funded company, uses that influence, secretly, to make sure that the company indirectly rents from an entity in which he has a substantial proprietary interest.

100.	Secondly, there were aggravating factors.  Most reasonable employers would regard the following as a substantial aggravating factor.  Faced with Allegation III A, the claimant’s response was to say that it was nothing to do with INI, and was solely a matter for the “Board of CAM” (although the offence had allegedly been committed by him while acting in his role as a seconded public servant).  During the disciplinary process, he also showed that he regarded the issue as being rather trivial (even though the allegation was that a public servant had secretly arranged to obtain personal revenue from a publicly funded project, by using influence which he had gained in his capacity as a public servant). 

101.	 In our view, no reasonable employer would fail to regard the relevant conduct as constituting misconduct of the most serious nature.  In our view, those employers would arrive at that conclusion even if they had satisfied themselves that the rental was not unduly high and even if they had satisfied themselves that the claimant made no more profit (from the relevant inappropriate transaction) than he would have made if he had invested his money in a different way.

102.	For the avoidance of doubt, we have noted the contention in the claimant’s Submission that, during the course of their evidence Mr Fitch and Mr Morrison had accepted that the “sole … issue here is that the claimant failed to ensure that the interest was shown in the statutory accounts”.  In our view, those comments do not accurately reflect the relevant evidence of those two witnesses.  Furthermore, the comments do not reflect the position of the respondent itself, as consistently adopted (on the respondent’s behalf) by Mr Mulqueen in these proceedings.

103.	Thus far, we have not considered the way in which the internal disciplinary authorities, at both stages of the internal disciplinary process, dealt with Allegation II B.  According to that Allegation, the claimant had failed to reimburse CAM in respect of the cost of the controversial advertisements (the advertisements which are referred to in Allegation II A).  Did he, or didn’t he, fail to reimburse?  That issue was avoided at both stages of the internal disciplinary process.  At both stages, the relevant disciplinary decision-maker (first, the Disciplinary Panel and, subsequently, Mr Morrison) failed to decide that issue.  

104.	Instead, both the Panel and Mr Morrison asserted that, regardless of the question of whether he had in fact paid the money back, the claimant had been guilty of wrongdoing by failing to adequately document any such reimbursement.  However, the disciplinary allegations did not include an allegation that the claimant had failed to adequately document any reimbursement.  Accordingly, it was improper of the employer to find the claimant guilty of a disciplinary offence in respect of any such non-documentation offence.

105.	In summary, the position is as follows:

(1)	The dismissal was “fair” within the meaning of Article 130(4) even if one ignores Allegation I (c), Allegation I (d), Allegation II B (the alleged failure to repay the advertising costs) and Allegation III A (the alleged failure to disclose).

(2)	This was a fair dismissal, having regard to the respondent’s ultimate conclusions in respect of Allegation III A (the failure to declare the relevant conflict), even if one ignores all the allegations other than Allegation III A.

106.	The implication of what has been set out above is that, quite apart from any potential effect of Article 130A of the Order, the dismissal was fair even when one takes account of the procedural shortcomings which we have identified above.  However, we are satisfied that, even if that latter conclusion is incorrect, the relevant procedural deficiencies do not make the dismissal an “ordinary” unfair dismissal, because of the effect of Article 130A.  (The employer has shown that if the relevant procedural deficiencies had not existed, they would have decided to dismiss the claimant for the allegations in respect of which he was in fact dismissed).

An automatically unfair dismissal?

107.	We still have to consider whether or not the decision to dismiss the claimant was automatically unfair, pursuant to Article 134A of the Order. 

108.	The dismissal was not automatically unfair pursuant to that Article.  We are satisfied that the circumstance that the claimant had made the Disclosures was not one of the grounds for dismissal.  In arriving at that conclusion, we have taken account, in particular, of two matters.  First, both Mr Fitch and Mr Morrison told us that the fact that the Disclosures had been made had had no significant effect on the outcome; and considered both of them to be truthful witnesses.  Secondly, the dismissal was reasonable and proportionate in all the circumstances.

The disciplinary process detriments claims

109.	That leaves us with one remaining substantive issue, which is as follows:  By subjecting the claimant to the procedural shortcomings which we have identified above, did INI breach 70B of the Order, (by subjecting the claimant, through those various shortcomings, to unlawful detriments (the relevant acts having been done on the ground that the claimant had made the Disclosures)?

110.	We are satisfied that the making of the Disclosures by the claimant had no significant influence on the determinations which resulted in the procedural deficiencies which we have identified above.

111.	We have arrived at that conclusion on three main grounds.  First, both Mr Fitch and Mr Morrison testified that they were unaware of any retaliatory action which had resulted from the making of the Disclosures, and we regarded them as reliable and truthful witnesses.  Secondly, in most respects, the investigatory and disciplinary process was carried out fairly.  Thirdly, it is not unusual, in the course of any in-depth retrospective analysis of any complicated and lengthy disciplinary process, to find serious procedural shortcomings (even in the absence of any backdrop of retaliation allegations).

The conflict of interest controversy as a credibility issue

112.	In relation to the “ordinary” unfair dismissal claim, our own views as to the guilt or innocence of the claimant, in relation to the relevant misconduct, were irrelevant.  (Instead, what matters, in that context, is what the employer believed, and what the employer, on the basis of the information then available to the employer, had reasonable grounds for believing).

113.	However, the question of whether or not the claimant really did make the disclosures to Dr Neville or Professor McNamee, as he has claimed, is a question which was relevant to our assessment of the credibility of the claimant as a witness.  We have arrived at clear conclusions in relation to that matter.  There would be an air of unreality about this Decision if we did not refer to those conclusions.   Accordingly, we now do so.

114.	During the course of these proceedings, we have had the benefit of receiving evidence which had not been available to the internal disciplinary decision-makers, either at the first stage of the disciplinary process or at the second stage of that process.  That newly available evidence includes the lengthy testimony which the claimant gave during the course of these proceedings.  It also includes Companies Register information. 

115.	We have noted various internal inconsistencies in the evidence which the claimant gave to us in these proceedings. We have noted various inconsistencies between that testimony and the various accounts of events which the claimant gave in the course of the internal disciplinary process of the respondent.  From the Companies Register information, we have noted that the claimant was already in a position to authorise a mortgage of the Wellington Park property only a very short period after he had “recommended”, “to the Board” of CAM, the relocation of the company to those premises; in our view, that documentary evidence is hard to reconcile with the claimant’s various accounts of events.

116.	As a result of that additional evidence, combined with some of the evidence which had already been available to the employer during the course of the disciplinary procedure, we are ourselves satisfied, to a very high standard, that the claimant lied to his employer, and has subsequently lied to us, when he said that he had notified Dr Neville and Professor McNamee about his own involvement in the purchase of the premises.  We accept that the claimant genuinely believes that he was badly treated by the respondent, in that (according to his view) he was underpaid and was not adequately supported.  Against that background, it is possible that he has deluded himself into believing that the pursuit of his own interests (his own entitlements, as he saw them) justified him in telling untruths.

Chairman:

Dates and place of hearing:	1, 2, 8-11, 15-30 June 2009, 3, 4 and 25 August 2009, 2, 9,11 and 22 September 2009, Belfast.

Date decision recorded in register and issued to parties: