Mr C Laidlaw v Driver And Vehicle Standards Agency: S/4107607/2017

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4107607/2017

Venue Edinburgh

Hearing 19th and 20th April 2018

Between

Mr C LaidlawClaimant

Driver And Vehicle Standards AgencyRespondent

Before

Employment Judge Peter O’Donnell

Date 18 May 2018

JUDGMENT

The judgment of the Employment Tribunal is that the claimant was not unfairly dismissed.

REASONS

[1]The claimant has brought a complaint of unfair dismissal against his former employer, the Driver and Vehicle Standards Agency (DVSA). The claim is resisted by the respondent. Preliminary issues

[2]The claimant initially sought re-instatement as a remedy. However, on the second day of the hearing, he indicated that this was no longer the remedy which he asked the Tribunal to award and rather sought compensation only. ETZ4(WR)

[3]A schedule of loss had not been prepared by the claimant in respect of an award of compensation only. The respondent had prepared their own schedule and, although it may have been possible for parties to agree certain matters such as basic award, it did not appear that parties were in a position to deal with remedies at the hearing.

[4]In these circumstances, it was decided that the Tribunal would not deal with the issue of remedies at the present hearing. A remedies hearing would be listed to address this is necessary. Evidence

[5]The Tribunal heard evidence from the following witnesses:-a. The Claimant

b. Howard Forrester (HF) who was the investigating officer

c. William (Bill) Harrison (BH) who heard the disciplinary hearing and made the decision to dismiss

d. Karen Farr (KF) who heard the claimant’s appeal

[6]There was an agreed bundle of documents prepared by the claimant. Additional documents were added to the bundle over the course of the hearing by both parties with no objection from the other party.

[7]This was not a case where there was any particular dispute of fact; the events leading to the claimant’s dismissal were, for the most part, a matter of consensus. The central dispute related to the conclusions which the respondent reached from those facts and opinions they formed as to whether the claimant was guilty of the misconduct in question.

[8]In these circumstances, the credibility and reliability of the evidence of the various witnesses was not something which the Tribunal had to form a particular view. In general, all of the witnesses gave evidence in an open and honest manner and the Tribunal did not consider that there was any issue with their evidence. Findings in Fact

[9]The Tribunal makes the following relevant findings in fact:-a. The claimant was employed by DVSA as a traffic examiner from 3 March 2008 until 21 September 2017. He worked from the respondent’s Livingstone office.

b. DVSA is a government agency and its staff are subject to the provisions of the Civil Service Code of Practice. This sets out the conduct expected of civil servants and, in particular, at paragraph 7 states that they must not misuse their official position giving an example of using information acquired in the course of their employment to further their own private interests.

c. DVSA also has its own staff handbook which is an extensive document covering various matters relating to the pay and terms and conditions of its staff. At paragraph 3.1.3 it states that staff “must be, and must be seen to be, honest and impartial in the exercise of [their] duties” and that they must maintain “a high standard of personal honest and integrity". It gives examples of misusing information acquired in the course of official duties and using their position in DVSA to further their own private interests. It expressly stated that a failure to comply with these standards will lead to disciplinary action.

d. The claimant, along with another DVSA employee (Simon Butler), invented and built what was called a “tachograph integrity checking” (TIC) device. There is an issue with devices being installed in vehicles to provide false tachograph readings and such devices can be difficult to detect.

e. There were existing tools used by DVSA and similar bodies across Europe to detect whether tachographs were being manipulated. The claimant and Mr Butler believed that they could design a more effective tool. They created the TIC device in their own time.

f. The existence of the device came to the attention of DVSA in November 2016 when Clive Taylor, a policy specialist within DVSA, emailed David Wood (Enforcement Policy Manager) on 21 November 2016 to advise him of the existence of the device which was discussed at a recent meeting.

g. Mr Wood emailed another manager, Steve Brougham, to express his concerns that this may be a conflict of interest, whether equipment belonging to DVSA has been used in the creation of the device and whether the knowledge used had been gained in the course of employment.

h. Mr Brougham looked into the matter and took the view at the time that there was nothing untoward in the claimant and Mr Butler developing the device. No formal disciplinary action was taken at the time.

i. In April 2017, Clive Taylor had a conversation (followed by an email exchange) with a Graeme Mays (GM) of Stoneridge Electronics (SE). SE are a multi-national company which manufacture a range of products including tachographs and related devices. They have a commercial relationship with DVSA who have purchased equipment from them.

j. GM stated that one of their employees, Colin MacLean, met Simon Butler at a trade show where Mr Butler told him about the TIC device created by him and the claimant. Mr Butler said it would be easier for the claimant to visit SE at their premises in Dundee as he was geographically closer.

k. The claimant attended a meeting with GM on 9 March 2017. The email from GM to Clive Taylor described the claim as wearing a “DVSA uniform”. It was common ground between the parties that this was a shirt with the DVSA logo on it. GM stated in his email that the claimant informed GM that he and Mr Butler had applied for a patent for the TIC device which could be used against others who developed a similar device in the future. GM stated in his email that the claimant had told him that quite a few officers were using the device across Europe and that they had a healthy WhatsApp group discussing the product.

l. It was said by GM in his email to Clive Taylor that the claimant indicated that their preferred route was to sell the product design, stock and patent.

m. Clive Taylor had also received information from SE about Simon Butler. It was not clear the process by which this was escalated but what appears to happen is that matters come to the attention of Dell Evans (Head Of Enforcement) who appointed Bill Harrison (BH) to take forward a formal disciplinary process.

n. BH was originally appointed to deal with the disciplinary process relating to Simon Butler and when there also appeared to be a disciplinary issue with the claimant related to the issues with Mr Butler, it was decided by Mr Evans that BH would deal with both.

o. BH was Enforcement Delivery Manager for the East Midlands at the time of the disciplinary process. He had 26 years’ service with DVSA and its predecessor organisations. He was not in the direct line management chain for the claimant.

p. BH decided not to suspend the claimant; he had been involved in another case where the employee was suspended for some time and it eventually turned out that there was no case to answer. This left a “bad taste” in his mouth and so he did not want to repeat this in the present case.

q. BH required to appoint an investigating officer for the case. DVSA’s disciplinary policy states that the disciplinary officer should contact the Department for Transport (DFT) advice line to seek appointment of an investigation Manager. However, it appears that this provision is no longer up-to-date and DVSA now receive support from Ministry of Justice caseworkers.

r. In any event, BH decided to appoint Howard Forrester (HF) as investigation manager, initially for Mr Butler’s case and then for the claimant as well.

s. HF was a senior traffic examiner at the point he was dealing with the investigation. He had been with DVSA since 2004 and was not in the claimant’s line management chain.

t. David Wood was HF’s line manager; HF was aware that Mr Wood raised issues in November 2016 but did not otherwise discuss the case with Mr Wood or interview him as part of the investigation.

u. The role of investigation manager is to decide who is to be interviewed, set out the facts of the case and give an opinion on whether there is a case to be answered.

v. HF was appointed in May 2017 and BH wrote to the claimant by letter dated 5 May 2017 advising him of HF’s appointment and the remit of the investigation. The allegations which HF was to investigate were “conduct regarding the development and sale of a tachograph integrity device” and “breach of policy in handling of evidence”. The latter allegation fell away very early on in the process and formed no significant part of the later stages of the disciplinary procedure.

w. As part of his investigation, HF interviewed a number of people in June and July 2017. He took statements from them which he typed up as he interviewed them. The people whom he spoke to were:- i. The claimant’s line manager Sandy Davidson whose statement appears at pp94-96 of the bundle ii. Steve Brougham whose statement appears at pp97-98 of the bundle iii. Spencer Miller who was involved in procurement for DVSA and whose statement appears at pp125-126 of the bundle

x. During evidence, HF also stated that he spoke to GM on the telephone to confirm the contents of his email. No note of this conversation was produced in the bundle and it appears that no note, either in the same format as the other statements or in any other format, exists. The Tribunal accepted HF’s evidence that he did speak to GM.

y. The claimant was interviewed by HF on 13 July 2017 and a record of his interview appears in the bundle at pp41-45.

z. In the course of this interview, the claimant confirmed the following matters:- i. He developed the TIC device in October 2016 in conjunction with Mr Butler in his own time and at his own expense ii. He had not notified HR of the development of the device iii. He met with GM at Dundee on 9 March 2017 iv. He was absent from work at the time recovering from an operation v. The contact from SE came via Simon Butler who had met with a representative of SE and that they wanted to see the device vi. The claimant was passed GM’s number and arranged the meeting. vii. When he met with GM, he briefly explained what the TIC device did. viii. There was a discussion of where he and Mr Butler wanted to go with the device and he stated that if somebody were to approach them to buy everything then the claimant would be happy with that. ix. When asked by GM how much they were wanting for the device, the claimant responded that if they were offered a fair price then they would sell it. x. The claimant admitted that he was wearing a DVSA shirt at the meeting. He explained that he had spilt coffee on the shirt he had been wearing and the only shirt he had ironed and ready was his DVSA shirt. He changed into that. xi. The claimant stated that he planned to keep his jacket on but the room was hot and he had to take the jacket off. xii. The claimant stated that, in hindsight, he would not have chosen to wear the DVSA shirt and that, at no point, did he let GM believe he was there in an official capacity. aa. After conducting all of these interviews, HF produced an investigation report dated 28 July 2017 that appears at pp46-56 of the bundle. He sets out his conclusions beginning at p51 of the bundle:- i. HF believe that the selling of the TIC device breached the integrity section of the Civil Service Code in that the claimant had used information acquired in the course of his duties to further his private interests ii. There needed to be consideration of whether the claimant had breached the Code and the Handbook by association in relation the posts made by Mr Butler to the WhatsApp forum created for users of the device iii. The claimant’s attendance at the meeting on 9 March when signed off sick was an abuse of the sick absence process iv. The claimant had breached the Civil Service Code and DVSA Handbook by using his position to further his personal interests when we wore his DVSA shirt to the meeting on 9 March. HF did not find the claimant’s explanation of how this came about to be plausible. bb. The report was passed to BH to consider what action was to be taken. By letter dated 17 August 2017, BH wrote to the claimant inviting him to attend a disciplinary meeting on 30 August 2017. The letter sets out the following allegations:- i. The claimant had used information gained when in DVSA’s employment to make, market or sell the TIC device ii. The claimant had failed to follow DVSA’s IT, data and social media policy in relation to the posting of information to the WhatsApp forum iii. He had failed to follow DVSA sick absent policy in relation to the meeting on 9 March in which he was alleged to have marketed the TIC device whilst off sick. It was noted he was wearing a DVSA uniform at the meeting cc. The letter explained that the three charges could constitute gross misconduct and so dismissal without notice was a potential outcome. dd. The actual disciplinary meeting did not take place until 14 September 2017. A note of the meeting appears at pp64-68. The claimant gave the same account of the meeting on 9 March 2017 as he had when interviewed by HF. ee. BH issued his decision by letter dated 21 September 2017. He found the allegations in relation to the WhatsApp forum and the breach of sick absence policy to be not proven. ff. However, BH did uphold the allegation that the claimant had used information acquired during the course of his employment to make, market and sell the TIC device. He stated that it was not the development of the device in itself which was an issue but the selling of it. gg. BH noted that around 8 devices had been sold and that he believed that the claimant had visited SE on 9 March with a view to doing business with them. hh. BH went on to say that, although the claimant had stated that if he knew this was wrong then he would not have done it, he had been aware of the investigation and was still clearly involved in the enterprise. ii. BH concluded that this conduct amounted to gross misconduct, that trust had irrevocably broken down and so the claimant would be dismissed with effect from 21 September 2017. jj. The claimant appealed by letter dated 24 September 2017 to Dell Evans. The letter set out various grounds of appeal; that there was insufficient evidence that the claimant was guilty; information which should have been disclosed had not been provided; the disciplinary policy had not been followed in terms of timescales; the claimant’s 9 years’ unblemished service had not been considered; the penalty was too harsh. kk. Karen Farr (KF) was appointed as the appeal manager. She is a Project Executive/Corporate Senior Leader who has 30 years’ service with DVSA. She is not in the claimant’s line management chain. ll. The purpose of the appeal as described in DVSA’s disciplinary policy is for the appeal manager to review the process to date, review the decision made as well as the sanction and to consider any new evidence. It is not a re-hearing of the case. mm. An issue was raised about KF’s impartiality by the claimant; KF is married to the line manager of David Wood. There was an exchange of emails between KF and the claimant in which KF explained that she did not discuss work with her husband and took the view that there was no conflict of interest. nn. KF indicated that an alternative appeal manager could be found if the claimant was more comfortable with that but that there could be a short delay while an alternative was found. oo. The claimant responded that he was satisfied with KF’s response and was happy for her to continue in the role. pp. The appeal took place on 6 October 2017. The claimant gave a similar account of the meeting on 9 March indicating that he had not attended that meeting with an intention to sell the TIC device. qq. KF sought further specialist legal advice around the issue about the confidentiality of the information or knowledge that would be required to make the TIC device. It appears that the advice was that, as the information is widely available on the internet, it could not be said that this information was confidential to DVSA. rr. KF issued her decision to the claimant by letter dated 24 October 2017. The letter appears in the bundle at pp87-88. The decision to dismiss was upheld. However, the reason for this differed from BH’s decision; KF decided that the claimant had not been in breach of the Civil Service Code or the DVSA handbook in developing the device. ss. The basis of her decision was that it was the marketing and selling of the device that was in breach of the Code and Handbook. In particular, KF formed the view that the claimant had sought to use his official position to further his own personal interests when he attended the meeting on 9 March 2017. tt. KF was of the view that this amounted to gross misconduct and that the trust between the claimant and DVSA had irrevocably broken down.

Relevant Law

[10]The test for unfair dismissal can be found in s98 of the Employment Rights Act 1996 (ERA).

[11]The initial burden of proof in such a claim is placed on the respondent under s98(1) to show that there is a potentially fair reason for dismissal. There are 5 reasons listed in s98 and, for the purposes of this claim, the relevant reason is conduct.

[12]The test then turns to the requirements of s98(4) for the Tribunal to consider whether dismissal was fair in all the circumstances of the case. There is a neutral burden of proof in relation to this part of the test.

[13]The test for whether a dismissal on the grounds of conduct (or misconduct) is set out in the well-known case of British Home Stores Ltd v Burchell

[1978] IRLR 379

[14]The test effectively comprises 3 elements:-a. A genuine belief by the employer in the fact of the misconduct

b. Reasonable grounds for that belief

c. A reasonable investigation

[15]It is important to note that, due to changes in the burden of proof since Burchell, the employer only has the burden of proving the first element as this falls within the scope of s98(1) with the second and third elements falling within the scope of s98(4).

[16]In order for there to be a reasonable belief, especially where there is a dispute as to whether or not the employee committed the misconduct in question, the employer must have some form of objective evidence on which to base their conclusion.

[17]Delay in carrying out an investigation is capable of rendering the dismissal unfair (on the basis that the investigation is then not reasonable) even with no evidence of actual prejudice cause by the delay (RSPCA v Cruden

[1986] IRLR 83

and A v B

[2003] IRLR 405

, EAT).

[18]If the Tribunal is satisfied that the requirements of Burchell are met then they still need to consider whether dismissal was a fair sanction applying the “band of reasonable responses” test. The Tribunal must not substitute its own decision as to what sanction it would have applied and, rather, it must assess whether the sanction applied by the employer fell within a reasonable band of options available to the employer. Respondent’s submissions

[19]The respondent’s agent produced written submissions and supplemented these orally.

[20]The respondent sought to rely on conduct as the potentially fair reason for dismissal and, in particular, that the claimant had acted contrary to section 3 of the DVSA handbook and the Civil Service Code in attending the meeting on 9 March 2017 to have commercial discussions about the TIC device whilst wearing a DVSA branded shirt. It was submitted that this amounted to using his official position to further his private interests.

[21]It was submitted by Dr Gibson that there was no evidence that the respondent did not have a genuine belief that the claimant had committed the misconduct in question; it was not put to any of the respondent’s witnesses that they lacked such a genuine belief.

[22]In relation to the reasonableness of the investigation, reference was made to Shrstha v Genesis Housing Association Ltd

[2015] EWCA Civ 94

as support for the proposition that an employer does not have to investigate each line of defence advanced by an employee and that what is important is the reasonableness of the investigation as a whole.

[23]In this regard, Dr Gibson referred the Tribunal to the evidence of HF in particular as supporting a finding that the investigation was reasonable.

[24]As regards, the reasonableness of the belief that the claimant had committed misconduct, Dr Gibson made the following propositions:-a. It was not in dispute that the claimant had developed the TIC

b. It was a matter of fact that the claimant attended the meeting with GM on 9 March 2017 and that he admitted there were discussions about the sale of the device

c. The decision makers (that is, BH and KF) may have had different views about whether the claimant had misused information but they were agreed that his attendance at the meeting on 9 March was putting his private issues ahead of his official position breaching both the DVSA Handbook and the Civil Service Code.

[25]It was submitted on behalf of the respondent that dismissal was clearly within the band of reasonable responses especially where there had been an irrecoverable breakdown in trust. Reference was made to the evidence of KF about the degree of trust and integrity involved in the claimant’s job.

[26]Finally, it was submitted that the procedure followed was fair and in keeping with the ACAS Code of Practice:-a. The task of investigating manager was taken out of the claimant’s line management chain

b. There were no significant delays in the process

c. It was made clear to the claimant that dismissal was a possible outcome

d. He was allowed to be accompanied at all meetings and had every opportunity to make his case

e. The decision-makers had taken account of his clean disciplinary record and length of service Claimant’s submissions

[27]The claimant did not dispute that conduct was a potentially fair reason nor did he seek to argue that those who made the decision to dismiss did not have a genuine belief that he had committed an act of misconduct.

[28]The claimant submitted that the belief was formed on the basis of a flawed and biased report from HF. The claimant argued that the report was flawed and biased on the following grounds:-a. The report makes no mention of any phone call to GM and no note of this call was ever provided

b. The claimant believes that GM was not interviewed and that this was detrimental to his case because GM could have provided more information in the claimant’s favour and that the statement provided (that is, the email to Clive Taylor) was incomplete

c. The report missed out anything from Steve Brougham’s informal investigation into the matter

d. The appointment of HF as investigator was not in accordance with the DVSA disciplinary policy as it was not done through the DfT Adviceline

e. The email which Clive Taylor provided from GM had been edited by Mr Taylor

[29]The claimant believed that he had been unreasonably investigated and that the respondent had engaged in a “witch-hunt” rather than looking at the benefits of the TIC device.

[30]It was the claimant’s position that he had not attended the March meeting with an intention to sell the device nor that he had admitted to planning to have commercial discussions at that meeting.

[31]He submitted that there was no proof that he was planning to sell the device but that there was nothing wrong in that as he was the patent holder.

[32]He accepted that wearing the DVSA shirt to the meeting was a “huge mistake” but that he never thought it would lead to this nor had he had any intention to sell the device at the meeting.

[33]He submitted that the level of misconduct was incorrect and that it should have been considered to be minor or serious.

[34]He agreed that trust and integrity in his job was a “big thing” but pointed out that he had continued in the role for 6 months during the investigation and disciplinary process without being suspended. He submitted that it was, therefore, wrong to say that it was impossible for him to continue in his job.

[35]He submitted that KF’s role was not to re-hear the case and so she was not entitled to use something which had not been taken forward in the original decision letter. This was a reference to the fact that she considered that the claimant’s attendance at the March meeting in his DVSA shirt amounted to gross misconduct whereas the allegation about his attendance at the meeting being a breach of the sick policy had not been upheld by BH.

[36]The claimant submitted that the Burchell test had not been met for the reasons he had set out.

[37]The Tribunal held that the respondent had shown that they had dismissed the claimant for reasons which would fall within “conduct” for the purposes of s98(1) ERA and that there was, therefore, a potentially fair reason for dismissal.

[38]The claimant had not sought to argue that the reason for his dismissal could not fall within the description of “conduct” and the Tribunal was of the view that the reason given by the employer clearly fell within that category of potentially fair reason. Did the respondent have a genuine belief in that the claimant had committed the misconduct in question?

[39]Again, the claimant did not seek to advance an argument that there was not a genuine belief by the respondent or that there was some other reason for his dismissal.

[40]The Tribunal heard evidence from the decision-makers, BH and KF, as to the reason why they decide to dismiss the claimant and the Tribunal had no reason to doubt the reliability or credibility of their evidence on this point.

[41]In these circumstances, there being no evidence to suggest some other reason for the claimant’s dismissal, the Tribunal concluded that there was a genuine belief by the respondent. Had there been a reasonable investigation?

[42]In assessing this issue, the Tribunal took account of the fact that HF had interviewed a number of relevant witnesses within DVSA and recorded those interviews. He also spoke to external witnesses. He met with the claimant and gave him the opportunity to answer the allegations against him.

[43]With the exception of the issues relating to GM (which will be considered further below), there was no evidence that there were any further witnesses whom HF should have contacted or further information which he could have obtained in the course of his investigation.

[44]The claimant made a number of complaints about the investigation which he believed showed it was not reasonable and we will address those each in turn.

[45]First, there was the complaint that the respondent’s disciplinary policy had not been followed in respect of the appointment of HF as BH had not contacted the DfT Adviceline. It was explained by BH that this was no longer used and that they now received support for Ministry of Justice caseworkers.

[46]The Tribunal was surprised that the respondent had not updated their policy to reflect this change but there was no evidence to suggest that BH’s position was wrong.

[47]Further, there was no evidence from which the Tribunal could conclude that the investigation would have reached a different conclusion had a different appointment process been followed. The Tribunal was very conscious in relation to this and other matters that the facts of the case were not significantly in dispute and so it was unlikely that a different investigation officer would have found different facts.

[48]The claimant appeared to suggest that HF was in some way biased because he received a promotion after the investigation but there was absolutely no evidence that these matters were connected.

[49]For this reason, the Tribunal did not consider that this made the investigation unreasonable.

[50]Second, there was the issue of whether or not HF had contacted GM. The claimant disputed this on the basis that there was no note of any conversation between HF and GM in the investigation report although there was no evidence to contradict what was said by HF at the hearing that he had spoken to GM.

[51]The Tribunal did consider that it would have been good practice for HF to have recorded his discussion with GM in the way that he recorded other interviews. However, it was not being said that any additional information was provided by GM in the discussion and, rather, he had simply confirmed the information set out in the email to Clive Taylor.

[52]Third, it was said by the claimant that Clive Taylor had edited the email from GM when providing this at the outset of the process.

[53]It is correct that what Mr Taylor did was to combine information received in two separate emails into one but there was no question that the email had in some way been edited to provide different or misleading information. All that happened was that Mr Taylor added the time of the March meeting into the text of the first email from GM. The Tribunal could not see how this prejudiced the claimant or affected the reasonableness of the investigation.

[54]For all these reasons, the Tribunal did not consider that there was anything unreasonable about the investigation of the claimant’s alleged misconduct. In particular, it appears that all relevant information had been gathered and the claimant had been given a full and proper opportunity to put his position. Did the respondent have a reasonable belief?

[55]In considering whether the respondent held a reasonable belief that the claimant had committed the misconduct in question, the Tribunal bore in mind that it was not a question of whether or not the Tribunal believed that he had done so. The Tribunal came to no conclusion as to whether the claimant had intended the meeting of 9 March to be a commercial meeting or whether he wore his DVSA shirt with the intention of furthering his private interests.

[56]The question for the Tribunal was whether there was objective evidence from which the respondent could come to the view which they had. In this regard, the Tribunal noted that the facts of the case were not significantly in dispute; there was no question (and the claimant did not dispute) that he attended the meeting wearing a DVSA shirt and that the issue of selling the TIC device (including the patent) to Stoneridge.

[57]It seemed to the Tribunal that a significant factor was the decision-makers’ view of the claimant’s explanation why he wore his DVSA shirt at the meeting; this was the most obvious allegation where the claimant was being said to have used his official position to further his own private interests and so the decision-makers had to come to a view on whether they believed the claimant.

[58]It was quite clear that both BH and KF did not find this explanation credible and the Tribunal was of the view that this was a conclusion that they were entitled to reach on the face of the information available to them. The Tribunal could not see any basis to determine that this was not reasonable.

[59]Once the decision-makers had come to the view that they did not believe the claimant’s explanation then it seems to the Tribunal that they were entitled to come to the view that claimant wore the shirt in order to enhance his position in any discussions with GM; no other explanation was being advanced and this conclusion was one which they were entitled to reach. Further, having reached this view about why the claimant wore his DVSA shirt, the respondent was also entitled to take the view that he had attended the meeting with a view to selling the TIC device.

[60]In these circumstances, the Tribunal decided that the respondents did have a reasonable belief that the claimant committed the misconduct in question. Was the dismissal procedurally fair?

[61]The Tribunal has already addressed the conduct of the investigation above and, for the reasons set out previously as to why the investigation was reasonable, we have concluded that there was no procedural unfairness in that element of the process.

[62]The Tribunal noted the claimant’s comments regarding the length of time which the process took but it did not appear to the Tribunal that this was so excessive as to cause any unfairness.

[63]The claimant did raise two issues in respect of the appeal.

[64]First, that KF was married to a member of the DVSA policy team by which he appears to suggest that she was not impartial. The Tribunal noted that this issue was raised at the time KF was appointed to the role of appeals manager and that she gave assurances to the claimant regarding her impartiality. The claimant responded to this indicating that he was satisfied with her response and was happy for her to continue, commenting that her integrity was never in question.

[65]The claimant appeared to suggest in the course of the hearing that he only agreed to this because of the potential delay in finding a new appeal manager. However, this was not the reason he gave at the time and it seemed to the Tribunal that the claimant was seeking to re-write history on this point. He gave a clear and unequivocal response at the time that he was happy for KF to continue in the role and that he was not questioning her integrity.

[66]In any event, there was no evidence to suggest that KF had not been impartial and the Tribunal could not see a basis to say that her appointment rendered the procedure unfair.

[67]The second issue with the appeal process raised by the claimant was that KF had no right to reconsider matters which were not upheld at the disciplinary hearing. Under the respondent’s disciplinary policy, the appeal manager is not re-hearing the case but, rather, carrying out a review of the decision reached.

[68]It seemed to the Tribunal that the conclusion reached by KF was within the scope of the review she had to carry out. She was not re-hearing the case in the sense that she was starting from the beginning and considering all the evidence anew. Rather, she considered that BH was wrong in his conclusion that the claimant had used knowledge gained through his employment to manufacture the TIC device but that the conclusion that he had sought to use his official position to further his own private interests in the marketing and selling of the device was correct. This was clearly part of the original decision to dismiss.

[69]The Tribunal understood the claimant’s complaint in this regard arose from the fact that KF relied on the fact that he wore his DVSA shirt to the 9 March meeting and that this had been a feature of the allegation relating to a breach of the sick absent policy which was not upheld. However, the Tribunal did not consider that KF was precluded from taking account of this fact simply because it had featured in an allegation which was not upheld in circumstances where it was also clearly relevant to the reason for dismissal and always had been.

[70]The Tribunal did not consider these issues in relation to the appeal made the procedure followed unfair.

[71]Overall, the respondent conducted what the Tribunal found to be a fair procedure, giving the claimant every opportunity to answer the allegations and there was nothing in what had happened which the Tribunal considered to be unfair. Was dismissal in the band of reasonable responses?

[72]It was quite clear from the evidence before the Tribunal that the respondent took issues around trust and integrity quite seriously. The staff handbook made it clear that any breach of the standards expected of employees would result in some form of disciplinary action and this was expressed in terms that such action was inevitable rather than just a possibility.

[73]The Tribunal wanted to understand how the respondent communicated these matters to its staff and the evidence from the respondent’s witnesses was less than helpful in this regard. It was simply said that the code and the handbook was available on the DVSA intranet but there was no indication that staff were giving any training on these matters (for example, when they join the organisation or as part of any continuing development) or that any particular effort was made to ensure that these standards were being communicated to staff.

[74]It was also said by KF that staff would frequently refer to the handbook but it is understood by the Tribunal that this is a very large set of information which no longer exists as a single document but is split into sections on the intranet covering a myriad of issues regarding terms and conditions of employment. The Tribunal could not conclude that the claimant or any other employees would have read and absorbed the relevant sections from this evidence alone.

[75]However, the claimant, in cross examination, accepted that he was aware that the allegations which he faced would be a breach of the Civil Service Code and DVSA handbook. The Tribunal, therefore, concluded that the claimant was aware of the standards set out in these documents and how he was expected to conduct himself.

[76]The Tribunal also noted the claimant’s comments around not being suspended. In response to this issue, Dr Gibson submitted on behalf of the respondent that suspension should be considered as a neutral act (that is, it would not suggest the guilt or innocence of the employee). The Tribunal agrees with this submission. Further, the Tribunal also noted BH’s reasons why he chose not to suspend the claimant. The Tribunal did not consider that the decision not to suspend the claimant has any impact on whether dismissal was ultimately a sanction open to the respondent.

[77]Taking account of the seriousness which the respondent placed on matters of trust and integrity for someone in the job held by the claimant and all the other matters addressed above, the Tribunal concluded that dismissal was within the band of reasonable responses.

Conclusion

[78]In these circumstances, the Tribunal has determined that the claimant’s dismissal was not unfair, there being a potentially fair reason for dismissal which the respondent was entitled to rely on having come to a genuine and reasonable belief, after a reasonable investigation, as to the claimant having committed the misconduct in question. Dismissal was clearly within the band of reasonable responses in all the circumstances of the case and there was no procedural unfairness.

[79]The claim is, therefore, dismissed.