Mr D Beveridge v Caerphilly County Borough Council: 1600879/2020

EMPLOYMENT TRIBUNALS

Case No 1600879/2020

Between

Mr D BeveridgeClaimant

Caerphilly County Borough CouncilRespondent

Before

Judge B Clarke

Mr G Waite (instructed by Counsel) for claimant

Date 10 July 2020

JUDGMENT

The complaints of unauthorised deduction from wages and unpaid holiday pay are dismissed upon their withdrawal. The complaints of unfair dismissal and wrongful dismissal are not well-founded and are dismissed. This means that the respondent fairly and lawfully dismissed the claimant. Judge B Clarke Dated: 10 July 2020

REASONS

[1]The tribunal’s judgment was delivered orally with reasons on 10 July 2020 and sent to the parties on 11 July 2020. The respondent has since requested written reasons. The written reasons set out below transcribe, with only minor edits to improve the flow, the oral reasons given on 10 July 2020. Introduction

[2]This case is about whether the respondent council fairly and lawfully dismissed the claimant, Mr Beveridge.

[3]Prior to his dismissal, Mr Beveridge had worked for the council for 16 years, spending the last eight of them as an area parks officer. This was a full-time role paying him a gross annual salary of £33,000. His job involved managing a small team dealing with horticultural and maintenance matters on publicly owned land including parks, grounds, sports fields, play areas, highways, allotments, housing estates and cemeteries, as well as dealing with fallen trees. His manager was Mr Davies. He reported ultimately to Mr Headington, who acted as manager of both green spaces and transport services for the council. Both feature in the case.

[4]Mr Beveridge’s role required him to be “out and about” a lot. He had certain core hours which varied slightly between the summer months (when hours could be banked) and winter months (when fewer hours could be worked). Because he was rarely in an office, it made little sense for him to use the conventional clocking system by which council workers would “swipe in” and “swipe out”. Instead, he used the council’s flexitime system; this required him to self-report his working hours remotely on an intranet site. Those hours would be sent to Mr Headington for approval. For employees who did not use the conventional clocking system, the system would also automatically deduct half-hour unpaid lunch breaks.

[5]This meant that Mr Beveridge, as both a manager and a mobile worker, had to be trusted to account honestly for his working time: his start time, his finish time and the length of his lunch breaks.

[6]Furthermore, to assist Mr Beveridge in travelling around the locality, the council provided him with a van, with all fuel paid for. The van was provided strictly for work use only. It was part of an overall council fleet of hundreds of vehicles made available to qualifying members of a workforce of nearly 9,000 individuals. In common with other fleet vehicles and widespread public sector practice, the van was fitted with a tracker so that its usage could be monitored.

[7]As I shall explain, suspicions came to light that Mr Beveridge was abusing the flexitime system and the vehicle use policy. During a period of paid suspension and a lengthy investigation, his working hours and tracked van movements were retrospectively scrutinised. The investigating officer was Mr Headington. The focus of the investigation was a five-month period in the middle of 2018. In September 2019, Mr Headington recommended that the matter be taken to a disciplinary hearing.

[8]The alleged misconduct took the form of unauthorised personal use of the van and fuel, other misuse of the van during the normal working day and misuse of the flexitime system. Put another way, Mr Beveridge was accused of dishonestly abusing the flexitime system to be paid for hours that he had not worked. Following a disciplinary hearing on 31 October 2019 chaired by Mr Hartshorn, the head of policy and public protection, the council summarily dismissed Mr Beveridge for gross misconduct. The decision to dismiss him was upheld at an appeal hearing before a panel of councillors on 2 March 2020. The complaints to the tribunal

[9]By an ET1 claim form presented on 12 March 2020, Mr Beveridge contended that his summary dismissal was both unfair and wrongful. He brought further complaints for unpaid wages and unpaid holiday pay which have since been withdrawn. The compensation he sought comprised damages for his 12- week notice period (about £5,700), a basic award for unfair dismissal (about £11,800), a compensatory award for unfair dismissal (about £18,500) and an accompanying uplift in relation to alleged non-compliance with the Acas code on disciplinary and grievance procedures.

[10]Rather than focus on the way in which the complaint of unfair dismissal was articulated in the claim form, I will summarise only those aspects of Mr Beveridge’s case that survived to the stage of closing submissions:10.1 Mr Beveridge has accepted that Mr Hartshorn held a genuine belief that he had committed the acts of misconduct identified above. However, he has contended that Mr Hartshorn’s belief was not based on reasonable grounds.

10.2 This was because, he has contended, the underlying investigation was insufficiently thorough. Specifically, Mr Headington’s investigation was unreasonable in that:

(a) he paid inadequate attention to the fraught relationship Mr Beveridge had with Mr Davies, and therefore did not properly consider his contention that the allegations against him were motivated by ill feeling from Mr Davies; and

(b) he drew unsafe conclusions from vehicle tracking data, and ought instead to have rejected the charges on the grounds of there being no incriminating eye-witness evidence.

10.3 Mr Beveridge has further contended that the dismissal procedure was defective in that: (a) the period of paid suspension was unreasonably long; and (b) the council did not deal separately with his grievance presented in the later stages of the disciplinary process.

10.4 Mr Beveridge has further contended that Mr Hartshorn’s decision to dismiss him was outside the range of reasonable responses in that inadequate weight was given to the following: (a) his previous good employment record and lengthy service; (b) Mr Davies’ ill-feeling towards him; and

[11]No issue was taken in relation to the internal appeal hearing (a puzzling position for Mr Beveridge to have adopted, if his account of that hearing had been plausible; see below). Certain other contentions (for example, that Mr Beveridge was not informed ahead of the disciplinary hearing that he might be dismissed or that he was given inadequate time to digest the evidence against him) were abandoned either in his evidence or not pursued in closing submissions.

[12]In respect of the wrongful dismissal claim, it was contended that Mr Beveridge had given a clear, consistent and credible account of his actions, which did not amount to gross misconduct. This meant, he argued, that it was unlawful for the council to terminate his employment without giving him 12 weeks’ notice or payment an equivalent payment in lieu. The response

[13]The council resisted the claim in full. Its essential submission was that it had acted fairly and lawfully in dismissing Mr Beveridge. It was said that this was a detailed, thorough and appropriately time-consuming investigation, culminating in a decision to dismiss that was within the range of reasonable responses. I was also invited to conclude, on a balance of probabilities, that Mr Beveridge had committed an act of gross misconduct that repudiated his contract of employment and entitled the council to dismiss him without notice. The hearing

[14]Following a preliminary hearing that I conducted on 16 June 2020, I directed that the case should proceed by way of a video hearing to avoid a lengthy delay in its determination. All participants (judge, parties, representatives, witnesses and observers), except for the tribunal clerk, joined remotely using the HMCTS cloud video platform. This presented no significant barriers to a fair hearing: witnesses gave oral evidence and were questioned in the normal way, and statements and bundles were provided by a mixture of paper and electronic versions. I thank the parties for their flexibility.

[15]The bundle comprised 657 pages. The investigation report alone was 28 pages with 343 pages of appendices, which included various timesheets, tracking data reports, policies and the investigation statements provided by Mr Beveridge, Mr Davies and others. I only read the documents in the bundle that I was invited to read or to which my attention was specifically drawn. There was a further remedy bundle of 49 pages.

[16]On the first day of the hearing, the tribunal heard evidence from the claimant and from three witnesses for the respondent: Mr Headington as the investigating officer; Mr Hartshorn as the disciplinary officer; and Ms Donovan as head of HR. Each witness had provided a written statement, and each was questioned. On the second day, I permitted the respondent to recall Mr Hartshorn to clarify one aspect of his evidence. I heard submissions and listed an extra day so that I could give an oral judgment. The relevant law

[17]The relevant legal principles that I must apply are not in dispute.

[18]In the unfair dismissal claim:18.1 The council bears the burden of proving, on a balance of probabilities, that it dismissed Mr Beveridge for misconduct, which is one of the potentially fair reasons set out in Section 98(2) of the Employment Rights Act 1996 (ERA). Through his representatives, Mr Beveridge has accepted that the respondent genuinely believed that he was guilty of misconduct. I therefore start from the position that the respondent has discharged the burden of proof in this regard.

18.2 My focus, instead, is on the general reasonableness of the dismissal under Section 98(4) ERA. This section provides that the determination of the question of whether the dismissal was fair or unfair depends upon whether, in the circumstances (including the respondent's size and administrative resources), the respondent acted reasonably or unreasonably in treating misconduct as a sufficient reason for dismissal. This is determined in accordance with equity and the substantial merits of the case. It is an objective test and the burden of proof is neutral.

18.3 In considering the question of reasonableness, I have had regard to the decisions in British Home Stores Ltd v. Burchell

[1980] ICR 303

EAT, Iceland Frozen Foods Ltd v. Jones

[1993] ICR 17

EAT and Sainsbury’s Supermarkets Limited v. Hitt

[2003] IRLR 23

CA. In short, when considering Section 98(4) ERA in a case where the genuineness of the respondent’s belief has been conceded, I should focus my enquiry on whether there was a reasonable basis for that belief and test the reasonableness of the investigation. However, I should not put myself in the position of the respondent and test the reasonableness of its actions by reference to what I would have done in the same or similar circumstances. It is not for me to weigh up the evidence that was before the respondent at the time of its decision to dismiss and substitute my own conclusion as if I were conducting the process myself. Employers have at their disposal a range of reasonable responses to the alleged misconduct of employees and it is instead my function to determine whether, in the circumstances, this respondent’s decision to dismiss this claimant fell within that range. The range of reasonable responses applies not only to the decision to dismiss but also the procedure by which that decision is reached, including the scope of the investigation.

[19]In respect of the wrongful dismissal claim, I refer to what I said at paragraph 6 of my case management summary, following the preliminary hearing on 16 June 2020, about the different analysis involved. Credibility and plausibility

[20]This was a case in which the credibility and plausibility of Mr Beveridge has been central to the outcome. This is for two reasons. First, it is relevant to my own assessment, for the purposes of his wrongful dismissal claim, as to whether he committed acts of gross misconduct. Second, it is relevant to my assessment of whether it was reasonable for Mr Hartshorn to conclude that he was not believable (which was why he did not believe that the case against Mr Beveridge had been manufactured by Mr Davies).

[21]Although it is not usual to say so at the outset of a judgment, on this occasion I consider it appropriate to remark that I do not consider the claimant to have given me a credible or plausible account. This is for three reasons, which require me to jump ahead in the chronology:21.1 First, Mr Beveridge’s oral evidence was inconsistent with a crucial part of his case, which is that Mr Davies had lied about him out of spite. In his statement, Mr Beveridge described Mr Davies as a “known liar” whose work nickname was “Johnny Bullshit”. This statement also said: “my dismissal comes down to [his] word against mine. This whole case against me is his lies”. (I pause here to observe that Mr Davies’s account was in fact only a very small part of the council’s case against Mr Beveridge.) His statement also said: “me and my manager did not see eye to eye, and we would often have disagreements with work issues.… Just prior to being informed of the allegations made against me I believe that I had upset [Mr Davies] for raising working practice concerns, which I consider was the reason why he had approached the head of community and leisure services and told him to find a way to get rid of me”. In contrast, during his cross-examination, Mr Beveridge said that most of the time he and Mr Davies had a reasonable relationship and that he “got on alright with him”. There was absolutely no specificity to his allegations that Mr Davies was motivated by ill feeling towards him. I found this to be implausible. In my judgement, a more likely explanation for his later reference to Mr Davies is that it was intended to distract from the case against him.

21.2 Second, there was an aspect of Mr Beveridge’s account which was implausible to the point of being inconceivable. His witness statement contained a striking allegation that, during the appeal hearing, Mr Hartshorn responded to a point of challenge from his trade union representative by asking him openly “what did you say, you cheeky c**t?” If this had happened as alleged, I consider it implausible to the point of inconceivable that Mr Hartshorn would not have been rebuked by any or all of those present: the councillors hearing the appeal, the head of HR or the council’s lawyer. I consider it implausible to the point of inconceivable that an experienced trade union official would not have complained formally to the council about such behaviour, and provided a witness statement in support of the exchange at a tribunal hearing, given the likelihood that such a discourtesy would have had a significant bearing on the fairness of the process. (Mr Beveridge’s account, when cross-examined, was that his trade union representative was merely amused by the exchange on the basis that he had “riled” Mr Hartshorn. I do not consider that a plausible response of an experienced trade union official.) I also consider it implausible to the point of inconceivable that, if Mr Beveridge had mentioned this point to his solicitors at the time, given its likely significance, it would not have been a significant feature of his particulars of claim. I am not persuaded, on the balance of probabilities, that this exchange occurred; more to the point, Mr Beveridge’s later pursuit of this contention has, in my judgement, wholly undermined his credibility.

21.3 Third, Mr Beveridge’s account of the accuracy of his long-distance memory recall is not credible. Much of this case is about what he was doing, and where he was doing it, on particular days. There were occasions during the tribunal hearing when Mr Beveridge was able to remember matters in support of his case with considerable specificity, which differed from the vaguer accounts he had given to the investigating officer in June 2019 or during the disciplinary hearing in October 2019. There were other areas where he struggled to give an answer. Where Mr Beveridge struggled to give an answer, he explained his difficulty by reference to the passage of time since the incidents in question or because, as he put it, his “diary skills were lacking”. Where Mr Beveridge was now able to provide a specific answer for the first time (in circumstances where he had not been able to provide such an answer during the investigation process or disciplinary hearing), he explained this by reference to his diabetes. Without any supporting medical evidence, he said that his diabetes meant that he had a poor short-term memory but then sometimes, unexpectedly, he would recall matters with clarity many months afterwards. That assertion is wholly lacking in credibility.

[22]Taking into consideration Mr Beveridge’s shifting position on Mr Davies, the implausibility of his allegation of what Mr Hartshorn said at the appeal hearing and the implausibility of his diabetes explaining the accuracy of his long-term recall, I regret to observe that I have assessed the evidence he provided throughout the tribunal hearing with considerable caution. It is against that backdrop that I now turn to the specific allegations against him and the process followed by the council in dismissing him. Findings of fact Policies and procedures

[23]The hearing bundle contained the drivers’ handbook provided to those who used council vehicles. It stated clearly that “The vehicle that has been allocated to you is for use on council business only. The private use of council owned, hired, leased or demonstration vehicles [is] not permitted under any circumstances whatsoever”. Mr Beveridge signed a declaration to confirm that he had read and understood the contents of the handbook.

[24]The handbook did not specifically state that unauthorised use of the vehicle also constituted an uninsured use of the vehicle. However, I accept Mr Headington’s evidence that the fleet manager informed him that this was the case, and, in any event, it seems plausible.

[25]The council operated a disciplinary policy. A copy was in the hearing bundle. Mr Beveridge accepted that its terms applied to him. The following provisions are relevant:25.1 It gave some examples of offences which “generally amount to misconduct” and which “depending on the nature of the offence … could be viewed as gross misconduct”. They included “unauthorised absence from work” and “misuse of the flexi system”.

25.2 It also gave examples of offences which “are normally regarded as amounting to gross misconduct and may be dealt with as such under the procedure”. These included “falsification of records”, “any dishonesty involving the council” and “serious breaches of the council’s policies and procedures”. Mr Beveridge accepted that the drivers’ handbook, and its prohibition on personal use of council vehicles, was one such policy.

25.3 In respect of what it described as “overlapping grievance and disciplinary cases”, it provided that the disciplinary process “may” (not “must”) be “temporarily suspended in order to deal with” a grievance that has been raised during the investigation or disciplinary process. It also provided that “where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently”.

[26]Finally, although it was possible for the council’s employees to work from home, Mr Beveridge had never sought authorisation (and was not authorised) to do so. Mr Beveridge’s other role

[27]In addition to his full-time role with the council as area parks officer, Mr Beveridge performed additional duties as a pavilion attendant. This role was performed via an employment agency. This job required Mr Beveridge to open and close individual pavilions and carry out cleaning duties. The pavilions were located on council property where he would work as an area parks officer. It is common ground that Mr Beveridge used his council vehicle for his duties as pavilion attendant.

[28]A factual question arises in the case about whether, in or around 2016, Mr Davies had given permission to Mr Beveridge to use his council vehicle for his pavilion duties. Mr Beveridge’s account during his investigation interview with Mr Headington was that Mr Davies had at one point said to him, about the use of the vehicle, that “so long as it is for work purposes then it is fine”. When he was interviewed by Mr Headington, Mr Davies was unable to recall the conversation; this is the principal “lie” that Mr Beveridge has attributed to him. For the purposes of determining Mr Beveridge’s wrongful dismissal claim, I make the finding of fact that Mr Davies did not give him permission to use his vehicle for pavilion duties. This is for the simple reason that, even on Mr Beveridge’s own account, the words used by Mr Davies were that the vehicle was “for work purposes”. Mr Beveridge inferred that this extended to his pavilion duties, but even on Mr Beveridge’s own account Mr Davies made no reference to those duties.

[29]A further factual question arises as to whether Mr Beveridge genuinely misunderstood what Mr Davies had said to him. For this to be so, he would, at the least, need to have thought that his council duties and his pavilion duties were one and the same thing. That, indeed, was his position when he was cross-examined. When questioned, he said that the council was paying for his time ultimately (presumably by paying the employment agency); he was, he said, doing the council a favour by performing such work quickly, when they would otherwise need to find cover. However, it was not his position when preparing his witness statement. He accepted in his statement that there was no overlap in the duties that he performed as pavilion attendant and his other duties as an area parks officer for which the council employed him directly, i.e. that they were discrete roles. In my judgement, the account in his witness statement should be preferred. I therefore find as a fact, on a balance of probabilities, that Mr Beveridge knew he was not entitled to use his vehicle for pavilion duties.

[30]As already noted, I make this finding of fact only in the context of his wrongful dismissal claim. Initial concerns and suspension

[31]Mr Headington received regular reports on out of hours working and vehicle usage. This was in his capacity as a senior manager but also because his portfolio included transport services. The heavy use of one vehicle in particular caught his eye when he was reviewing such a report at the end of October 2018. He resolved to consider the matter in more detail when he had time. He began to scrutinise the issue more closely in January or February 2019. At that point, he ascertained that the licensed user of the vehicle was Mr Beveridge. He noted that Mr Beveridge appeared to be using his vehicle on weekends (and not just during the working week) and outside of his core working hours. He therefore requested a specific report about the out of hours use of the vehicle for a five-month period in the middle of 2018. He thought it unlikely that this usage could be explained by reference to out of hours calls, for example in relation to fallen trees. On 19 March 2019, he formally requested access to the vehicle tracking information for a specific five-month period. The length of the period was chosen to enable him to assess whether there had been systematic misuse.

[32]Mr Headington considered that the possible misuse was so significant, and so systematic, that it merited Mr Beveridge’s suspension while the matter was subjected to a thorough investigation. Accordingly, at a meeting held on 29 April 2019, Mr Headington informed Mr Beveridge that he would be suspended on full pay whilst further investigations took place. Given that dishonesty was alleged, it was, in my judgment, reasonable for the council to suspend Mr Beveridge.

[33]Pausing there, I reject the assertion made by Mr Beveridge during the tribunal hearing that the council’s investigation into him had in fact commenced at the end of October 2018. This assertion was used to support two arguments: first, that Mr Headington cannot genuinely have been concerned about the extent of the possible vehicle misuse, because otherwise he would have suspended Mr Beveridge immediately; and, secondly, if he was genuinely concerned about it, it was unreasonable to delay the decision to suspend. In other words, regardless of his view, he acted unreasonably. However, that is not what happened. What happened is that Mr Headington took time to scrutinise the information, when he had an opportunity to do so, and he decided to suspend Mr Beveridge only when the potential seriousness of the situation had become apparent.

[34]It was suggested in submissions that there were problems with the accuracy of the clocking and/or tracking information, which is why it would have been reasonable for the council to have rejected the charges against Mr Beveridge (or imposed some lesser sanction) by reason of the lack of eyewitness evidence of his misuse. There was no evidence before the tribunal that the tracking evidence was inaccurate; in contrast, I was struck with the accuracy by which the vehicle could be located close to Mr Beveridge’s home, his partner’s home or his ex-wife’s home. I do not need to record the address and postcode of those locations; I will refer to them simply as locations A, B and C. There was also no evidence before the tribunal that the records of the flexitime system were inaccurate, and I would point out again that the start and finish times entered on the system were provided by Mr Beveridge personally. I therefore proceed on the basis that it was reasonable for Mr Headington to treat this data as substantially accurate and reliable and, in the context of Mr Beveridge’s wrongful dismissal claim, I do likewise. Investigation

[35]Once the investigation was formally underway, Mr Headington began the rather laborious process of a day-by-day check, for the five-month period selected, of the location of Mr Beveridge’s vehicle as against both the duties that he was required to perform and the working hours he self-reported under the flexi system in order to receive pay.

[36]This task revealed many discrepancies. Importantly, it suggested that the level of misuse could not be explained by reference to the performance of pavilion duties. It raised a particularly significant concern that Mr Beveridge was claiming to be at work and entitled to pay at times when the presence of his vehicle suggested that he was at locations A, B or C.

[37]It was not proportionate during the tribunal hearing to analyse each discrepancy so that Mr Beveridge could be cross-examined on them. That would have taken many hours. Instead, at my suggestion, Mr Wallbank selected a representative sample of working days. In the interests of proportionality, I have not recounted each incident on which Mr Beveridge was cross-examined or each example of him using his vehicle at times when he was on leave or at weekends. I have chosen five examples which relate to being paid for times when he was not working (but they are representative):37.1 On 4 July 2018, Mr Beveridge’s vehicle left location A (his home) at 07:38 and arrived at his work depot at 07:56. He reported under the flexitime system that he had commenced work at 07:00. He was thereby paid for 56 minutes when, on the face of it, he was not working. His explanation under cross-examination was that he may have spent time at home working on emails. During the investigation he said it might have been a call out to examine a fallen tree, which Mr Hartshorn did not find persuasive.

37.2 On 6 July 2018, Mr Beveridge’s vehicle left a work location at 12:01 and reached his partner’s home at 12:15. He left his partner’s home at 12:59 and arrived at his depot at 13:17, taking effectively an hour and a quarter for a half-hour lunch break and so improperly seeking pay for the difference between them. During the investigation he said he may have stopped for a rest while dealing with a diabetes-related headache. This explanation was subjected to scrutiny during the disciplinary hearing. It was the point at which Mr Hartshorn began to find his explanations unbelievable. The explanation during the disciplinary hearing variously included handing in timesheets, refuelling his vehicle and walking his partner’s dog. His explanation under cross-examination was that he had walked to the nearby depot to hand in his timesheets (despite apparently driving there later).

37.3 On 7 August 2018, Mr Beveridge’s vehicle spent between 09:20 and 10:12 parked at his home, effectively treating 52 minutes as a halfhour lunch break. During the investigation he said that he had visited his GP surgery. His explanation under cross-examination was that he was only at home for so long as it took him to boil a kettle and that he used the time to walk to a nearby old people’s home to price up tree works (choosing not to use his vehicle because he “liked walking”).

37.4 On 13 August 2018, Mr Beveridge’s vehicle was parked at his home from 15:35 but he reported his finish time for the flexi system at 16:30, thereby receiving an extra 55 minutes of pay. His explanation under cross-examination was that he walked elsewhere to price works. This was a new explanation; he had not been able to recall this occasion during the investigation meeting – this was an occasion where, he said, his diabetes facilitated longer distance recall.

37.5 On 5 September 2018, Mr Beveridge’s vehicle spent between 12:22 and 13:10 parked at his home, appearing to be another extended lunch break. In the investigation there was no explanation for this. His explanation under cross-examination was that he went to visit his GP and then got on with emails, and he had not reduced the working time on the flexi system to reflect his visit to his GP because he feared that Mr Davies would bully him for it. This was a new explanation that he had never given before.

[38]In the tribunal hearing, Mr Beveridge explained the discrepancies in his explanation by reference to the fact that he had been subjected to extensive questioning by Mr Headington, the implication being that he had not been able to think straight. While that might ordinarily be a plausible explanation for inaccurate answers, it should be borne in mind that the notes of the meeting were sent to Mr Beveridge for comment and that he sought to make no amendments to them.

[39]Towards the end of September, Mr Headington set out his findings in a detailed investigation report, recommending that the matter should proceed to a disciplinary hearing. A full account was given in respect of each of the allegations, including the distance travelled through unauthorised use of the vehicle and numerous examples of claims made under the flexitime system for pay when, according to Mr Headington’s investigation, Mr Beveridge was likely to be at home or at the address of his partner. He did not put a total figure on the potential loss to the council (loss of pay, money spent on fuel, wear and tear on the vehicle) but estimated it would be in the thousands of pounds. Disciplinary hearing

[40]By letter dated 27 September 2019, Mr Beveridge was invited to attend a disciplinary hearing. He was sent all relevant materials and warned that his job was at risk. The hearing was rearranged to suit Mr Beveridge’s availability, and it took place on 31 October 2019. The meeting was a lengthy one and I have already referred in brief to some of the explanations that Mr Beveridge gave to Mr Hartshorn. Mr Beveridge stated that Mr Hartshorn took only four minutes to reach his decision. The minutes show that it took him 15 minutes; in either case, a quick decision.

[41]It does not follow from the fact that a decision is reached quickly that it is necessarily peremptory or arbitrary. Mr Hartshorn quickly concluded that he did not find Mr Beveridge’s explanations credible and that was the basis for the swiftness of his decision. I have reached the same conclusion myself in the context of determining Mr Beveridge’s wrongful dismissal claim. In the context of determining his unfair dismissal claim, I say only that this was swift evaluation of the evidence was reasonably open to Mr Hartshorn based on what he had heard. He then set out his reasons in a more detailed letter sent to the claimant on 7 November 2019.

[42]Mr Hartshorn confirmed in evidence (for which I agreed he could briefly be recalled) that he considered Mr Beveridge’s length of service and prior good record, which involved an expired warning but nothing more serious. Given the weight of the evidence against him, he declined to attach any weight to them. Grievance

[43]Parallel to the disciplinary process, Mr Beveridge raised a grievance. The timing of him doing so is not clear. His witness statement did not give a date to his grievance, and the written grounds of his grievance in the bundle were undated. There was an accompanying grievance form dated 24 November 2019, but that does not appear to be reliable because it post-dates Mr Beveridge’s dismissal. What is certainly clear, and agreed between the parties, is that the grievance appeared late in the disciplinary process but before the disciplinary hearing.

[44]Mr Hartshorn declined to consider the grievance because he viewed it as an inappropriate attempt to distract from the disciplinary process. Most of the grounds of the grievance are in fact complaints about the way in which the disciplinary matter had been investigated, in which he described Mr Headington’s investigation as unfair and biased. I accept the evidence of Mr Hartshorn and Miss Donovan that Mr Beveridge was advised to focus his grievance on what he wanted to say at the disciplinary hearing and, when they heard nothing further from him, they assumed he had taken that advice on board when he attended the hearing. Appeal

[45]Mr Beveridge presented an internal appeal against his dismissal, which was heard on 2 March 2020. This was the point at which the focus of his concerns shifted towards whether Mr Davies had in fact authorised him to use his vehicle for pavilion duties. Thus Mr Beveridge appears to have lost sight of the fact that the case was not simply about the misuse of his vehicle, but the abuse of the flexitime system that resulted in him receiving pay for hours that the respondent concluded him not to have worked.

[46]In any event, Mr Beveridge takes no issue with the fairness of the internal appeal hearing notwithstanding his evidence that Mr Hartshorn spoke in vulgar terms to his trade union representative during it. Conclusions

[47]I deal first with my conclusions in the unfair dismissal claim and begin by rejecting Mr Beveridge’s the contention that the council failed to carry out a reasonable investigation:47.1 This was a thorough, evidence-based and detailed investigation, with interviews conducted with all relevant individuals.

47.2 The principal source of evidence against Mr Beveridge was not Mr Davies; it was the tracking and flexitime data. In my judgment, the disciplinary process was not rendered unfair by the fact that no separate investigation was carried out into the specific point of whether Mr Davies disliked Mr Beveridge and had therefore lied about permitting him to use his vehicle for pavilion duties. This issue was a distraction; it cast no light on the occasions when Mr Beveridge sought pay for hours when, on a balance of probabilities, he was at home and not working. This was the approach taken by Mr Hartshorn and, in my judgement, it was within the range of reasonable approaches open to him.

47.3 The absence of eyewitness evidence is irrelevant. It would not have been feasible for the council to have obtained eyewitness evidence of what Mr Beveridge was doing while his council vehicle was parked outside his home or outside his partner’s home. This is because the chief eyewitness to that would be Mr Beveridge himself.

47.4 Data is collected precisely so that it can be used to test, rigorously and analytically, the sort of situation that faced the council. The strength of that evidence was tested by interviewing Mr Beveridge personally, and Mr Hartshorn was entitled to view the account he gave as lacking in credibility and as illogical. That was a reasonable assessment for him to make.

[48]Accordingly, my judgment is that, based on this reasonable investigation, Mr Hartshorn had a reasonable basis for his genuine belief that the claimant had grossly misconducted himself.

[49]Given the complexity of the investigation, the amount of data to be analysed, the ultimate length of the report and the number of appendices, I do not consider that Mr Beveridge’s period of suspension was of an unreasonable duration. It is of course possible that the investigation could have proceeded more quickly, but I bear in mind that Mr Headington was a senior manager with a range of responsibilities and was unable to dedicate himself full-time to this investigation; it had to be fitted around his other duties.

[50]I was initially troubled by the fact that Mr Beveridge’s grievance did not receive an explicit response. However, given the view that Mr Hartshorn took about the grievance, his personal failure to deal with it did not taint his decision to dismiss with unfairness; this is because, as noted above, Mr Beveridge was asked to refocus what he said in that grievance so that it could be considered as part of the disciplinary hearing, and he did not do so. In any event, the grievance overlapped entirely with the complaints he made about the investigation process during the disciplinary hearing and the substance of his concerns was therefore considered as part of that hearing. There was no compulsion under the terms of the council’s policy to suspend one process while it dealt with another; the issues were addressed concurrently.

[51]The council’s decision to dismiss Mr Beveridge was within the range of reasonable responses. Given Mr Hartshorn’s conclusion that Mr Beveridge had acted with wilful dishonesty and gained a financial advantage by doing so, the decision to dismiss him was reasonable. Because dishonesty strikes at the heart of the relationship of trust and confidence between an employer and an employee, it was open to Mr Hartshorn to place no weight on Mr Beveridge’s lengthy period of prior service. As for the lack of training Mr Beveridge says he was given in using the flexitime system, I can dismiss that readily; although Mr Beveridge had argued during the disciplinary hearing that he had not been trained on the flexitime system, he accepted that it was straightforward to use. It was reasonable for Mr Hartshorn to place no weight on that matter.

[52]As for Mr Beveridge’s wrongful dismissal claim, my own assessment of the evidence is that, on a balance of probabilities, he abused the flexitime system to receive pay for hours that he had not worked. This was an act of gross misconduct. It repudiated his contract of employment and meant that it was lawful for the council not to provide him with his 12 weeks’ notice but, instead, to dismiss him summarily.

[53]For these reasons, Mr Beveridge’s complaints of unfair dismissal and of wrongful dismissal are both rejected. Judge B Clarke Dated: 11 August 2020