Employment Judge M KearnsMr M Whillans (instructed by Solicitor) for respondentDate 23 March 2026
JUDGMENT
The unanimous Judgment of the Employment Tribunal was that the claimant was unfairly dismissed by the respondent but that he is not entitled to compensation.
REASONS
[1]The claimant, who is aged 68, was employed by the respondent as harbour master at Uig on the Isle of Skye from 5 September 2017 until his dismissal on 2 April 2025. On 25 May 2025, having complied with the early conciliation requirements, he presented an application to the Employment Tribunal in which he claimed unfair dismissal. The respondent resisted the claim.
Evidence
[2]The parties lodged a joint bundle of documents (“J”) and referred to them by page number. The claimant gave evidence on his own behalf. The respondent called the following witnesses: Jane Gardiner, who transcribed the notes of the investigation meeting on 18 February 2025 from recordings; Joseph MacKay, Marine Superintendent; Alistair MacGregor, Senior Investigation Officer and the author of the Corporate Audit Report; Tracey Urry, the respondent’s former Head of Roads and Infrastructure (now retired) who took the decision to dismiss the claimant; and David MacRae who assisted with the investigation and was present at the claimant’s appeal.
Issues
[3]The issues for the Tribunal were:(1) Whether the claimant’s dismissal was fair or unfair;(2) If it was unfair what financial award/compensation, if any is due to the claimant taking account of:a. the percentage or other chance that a fair procedure would have reached the same result;b. whether the claimant contributed to his own dismissal to any extent;c. whether the claimant took appropriate steps to mitigate his loss; Findings in Fact[4]The following material facts were admitted or found to be proved.[5]The respondent is the Highland Council. The claimant was employed by the respondent as harbour master at Uig harbour on the Isle of Skye from 5 September 2017 until his dismissal on 2 April 2025. The harbour master role is mostly office based. The claimant had two assistant harbour masters (“AHMs”) reporting to him, Ian Mutch and Brian Wells.[6]The harbour has a works transit van which is used by the claimant and the AHMs for tasks such as slipway cleaning. Generally, the claimant would take the van home at the end of the day and drive to work in it each morning. The harbour transit van has a Masternaut vehicle tracking system fitted to it. Each member of harbour staff was given their own fob so the identity of the driver on each occasion was apparent. The system recorded the driver fob entered, the times, speeds and routes taken and the location of the vehicle at all times to within 4 metres. The fob of a former member of staff VC was still in circulation and was most commonly used by Mr Wells.[7]Uig harbour has a storage tank filled with marine gas oil also known as ‘red diesel’. Commercial vessels and some leisure craft are legally allowed to use this fuel and it is available for them to buy at the harbour. Since a new fuel dispensing system was installed at the harbour on 18 September 2024, regular purchasers had a key fob which they used for self-service. The system would then automatically charge their accounts and the harbour staff would check the paperwork weekly. The harbour staff also had individual key fobs to enable them to dispense diesel to customers who did not have fobs. Those customers would then be asked to sign a form to confirm the diesel supplied was for an accepted use and the harbour staff would complete the paperwork.[8]When the new system was installed on 18 September 2024, around 60 litres of fuel was drawn through the system to check the calibration and ensure it was recording correctly. The harbour staff were instructed that these 60 litres were not to be sold to customers but were instead to be used for jobs around the harbour such as driving the forklift truck.[9]If the fuel tank becomes completely empty, an air lock can occur. Because of this, the tank has a bleed valve with a hose coming off it and into a bucket. In the event of an airlock, the air can be drawn off by opening the bleed valve (259) and releasing the air through the hose until diesel appears in the bucket (a bit like bleeding a radiator). When fuel is taken out of the tank through the bleed valve, it bypasses the fuel meter and is not recorded.[10]One of the jobs of the assistant harbour masters (“AHMs”) was to clean the harbour slipways to remove any build-up of algae, so that they are safe for the public to walk on. There are two methods: chemical cleaning using chemical concentrate from a drum and diluting it down; and pressurewashing. The slipway cleaning job therefore involves either the transportation of multiple drums of chemicals, with a watering can and PPE or bulky pressure-washing equipment including a 1000 litre water tank. Either way, the harbour van is necessary for the job. The job normally takes 2 to 3 hours depending on the amount of growth. The job can only be done two hours either side of the low tide when the slipways are fully exposed. Often slipway cleaning would be done at low water on a spring tide. The standard practice is to arrive 2 hours before low water and follow the tide down. Slipway cleaning would normally be done by the AHMs. It was not normally done by the harbour master.[11]The claimant and the AHMs completed time sheets monthly. Each monthly time sheet had a line for each day where the employee would record the hours worked for that day and any overtime. (273) The rule about overtime was that it had to be authorised prior to being worked and that it had to be: “approved by a Chief Officer or other delegated manager who has the relevant authority” (336). A time sheet with overtime had to be signed by the employee’s authorised manager. The prior authorisation of overtime was not an absolute rule because sometimes the Calmac ferry would be delayed and harbour staff would have to work overtime they had not foreseen in advance. However, planned overtime was to be approved in advance. The claimant authorised the overtime for the AHMs. However, he did not generally get his own overtime signed for by his line manager as required. Indeed, he signed and authorised overtime on his own times sheets, which was not permitted.[12]In early October 2024, a member of staff at Uig harbour reported to the Harbours Manager, David Seddon that they had concerns about fuel discrepancies, possibly involving the claimant. They reported that the claimant had been seen moving containers of fuel when there was no operational reason for doing so, as all fuel should be stored in the main storage tank. They reported their concern that red diesel fuel had been lost and could not be accounted for. The matter was brought to the attention of Tracey Urry, Head of Roads and Infrastructure. The Marine Superintendent, Mr MacKay reviewed the Uig Harbour records between 1 April 2024 and October 2024 and found that there had been significant fuel level variances, which could not be reconciled with the paperwork. He reported this to Mrs Urry, who decided to suspend the claimant pending investigation.[13]On 16 October 2024, David Seddon, Harbours Manager attended at Uig Harbour and suspended the claimant on full pay pending investigation of allegations of gross misconduct. The suspension was confirmed in a letter of that date from Tracey Urry (74). The letter stated that the allegations being investigated were:• “That a substantial loss of fuel has been taken from Uig red diesel fuel tank which has not been reconciled on paper or by meter readings.• Following a review of CCTV footage, you were seen on Friday 11 October 2024 to be taking quantities of marine diesel in black 25 litre containers and there was no known operational reason for this.”[14]On the day of his suspension, two glass panes and a 25 litre container full of red diesel were found in the works van. Masternaut data showed that the claimant was the person last in possession of the van.[15]On 19 October 2024 Mrs Urry met with the respondent’s Corporate Audit Team and requested them to investigate the issue at Uig Harbour, reporting that the Marine Superintendent had done some calculations and it appeared a significant amount of fuel was missing or stolen.[16]The Corporate Audit Team reviewed the records for Uig Harbour for the period 1 April to 28 October 2024. They identified a number of weaknesses in the system being used, such as: not using a properly calibrated dipstick to take regular tank readings; and variances between verified fuel deliveries (225,063 litres) and fuel recorded as dispensed from the metre (189,287 litres). Their review of records and reconciliations showed significant ongoing and fluctuating variances. The team were unable to accurately verify whether these variances were due to inaccurate measurements of fuel held or potential losses or both. With regard to whether ‘a substantial loss of fuel had been taken from Uig red diesel fuel tank which had not been reconciled on paper or by meter readings’, per the first allegation, the team concluded that they were unable to substantiate this because of the weaknesses in the system. However, they found that those weaknesses would allow fuel to be stolen and the volume unquantifiable.[17]With regard to the specifics of the second allegation, the team found:• that it was possible to bypass the fuel meter in the harbour master’s office and obtain unmetered fuel by means of the pipe and bleed valve;• that funnels were being stored in the fuel meter box which could be used to aid the removal of fuel into containers; and• that the CCTV was inadequate for monitoring the delivery, storage and dispensing of fuel because the cameras did not cover the tank, fuel meter box or fuel dispensing hose.[18]The investigators interviewed the two assistant harbour masters. By letter dated 10 February 2025 (76), the claimant was invited to an investigation interview under caution on 18 February 2025. The letter informed the claimant that he was entitled to formal representation for the interview or to bring any other person of his choosing not connected with the inquiry. A leaflet was enclosed explaining the interview process. The claimant chose not to be accompanied. The investigators, Alistair MacGregor, senior investigation officer and David MacRae investigation officer, were both from the respondent’s Corporate Audit Team. They interviewed the claimant under caution.[19]The team had reviewed CCTV footage for a range of dates and they showed this to the claimant. The footage for 23 September 2024 showed the claimant removing two black 25 litre containers and one white 20 litre container (70 litres in all) from the Uig harbour site. The claimant was asked about this and admitted during his interview that the containers held red marine diesel. He told the investigators they were for a cash sale he recorded on 11 October 2024. However, the sale was recorded 18 days after 23 September 2024 and was for a different amount (85 litres). Furthermore, the required HMRC form had not been used for the sale. The sale had not been recorded through the key fob system installed on 18 September and the claimant stated that the fuel had been taken from 60 litres drawn off by engineers installing the new system which was for harbour use only and not to be sold. However, the quantity exceeded the drawn off fuel by 25 litres, which the claimant could not adequately explain.[20]On 11 October 2024, the CCTV had captured the claimant removing a further 25 litres from the Uig harbour site. The claimant told the investigators this could have been red diesel or water. He did not provide a cogent operational reason for moving the container. On 15 October 2024, the CCTV showed the claimant moving a white 25 litre drum containing a red coloured liquid, a black 25 litre container, a funnel and a bucket. When questioned in the interview about what he was doing, he stated that he was removing sludge from the metal box housing the fuel meter for disposal. He was not seen removing these from the site. When he was suspended the next day (16 October 2026) a black 25 litre container filled with red diesel was found in the back of the van used by him that morning. He had used the van the night before and had not been informed in advance of his suspension. There were no fuel sales on the 14, 15 or 16 October using the claimant’s fob key or through any other staff member’s key fob.[21]The investigators had checked the rotas and time sheets for all the harbour staff as part of their investigation into the fuel losses. They had discovered possible anomalies with the claimant’s overtime claims and they asked him about these during the interview. The claimant had been approving his own overtime, contrary to policy. The claimant claimed overtime on his time sheets for ‘slipway cleaning’ as follows: Date Claimant hours with all overtime claimed Tides that day/ by him for “slipway cleaning” Masternaut 10/4/24 Working day claimed: 08:30 to 16:30 (7 hours); M’naut shows no plus overtime: 16.30 – 19.30 (3 hours) slipway cleaning done on this date 11/4/24 Working day claimed: 08:30 to 16:30 (7 hours); M’naut shows no plus overtime: 16.30 – 19.30 (3 hours) slipway cleaning done on this date 22/4/24 Working day claimed: 08:30 to 16:30 (7 hours); M’naut shows plus overtime: 16.30 – 19.30 (3 hours) slipway cleaning done by AHM from 11.14 to 15.31 23/4/24 Working day claimed: 08:30 to 16:30 (7 hours); M’naut shows plus overtime: 16.30 – 19.30 (3 hours) s/w cleaning done 11.57 – 15.24 24/4/24 Working day claimed: 08:30 to 16:30 (7 hours); s/w cleaning plus overtime: 16.30 – 19.30 (3 hours) done VC fob 12.21 – 16.27 7/5/24 Working day claimed: 08:30 to 16:30 (7 hours); LT 13.20 0.6m plus overtime: 16.30 – 19.30 (3 hours) HT 18.56 5.2m 8/5/24 Working day claimed: 08:30 to 16:30 (7 hours); LT 13.59 0.6m plus overtime: 16.30 – 19.30 (3 hours) HT 19.36 5.2m 21/5/24 No times given. Overtime: (2 hours) LT 12.38 1.3m HT 18.24 4.6m 22/5/24 No times given. Overtime: (2 hours) LT: 13.12 1.2m HT: 18.56 4.7m 28/5/24 Working day claimed: 08:30 to 16:30 (7 hours); HT: 10:34 4.2m plus overtime: 16.30 – 19.30 (3 hours) LT: 17.01 1.6m 29/5/24 Working day claimed: 08:30 to 16:30 (7 hours); HT: 11:34 4.1m plus overtime: 16.30 – 19.30 (3 hours) LT: 17.58 1.8m 5/6/24 Working day claimed: 08:00 to 16:00 (7 hours); LT: 12:55 1m HT: plus overtime:16.00 – 19.00 (3 hours) 18:39 4.9m 6/6/24 Working day claimed: 08:00 to 16:00 (7 hours); LT: 13:37 0.9m plus overtime:16.00 – 19.00 (3 hours) HT: 19:22 5m 3/7/24 Working day claimed: 08:00 to 16:00 (7 hours); LT: 11:50 1.4m plus overtime:16.00 – 19.00 (3 hours) HT: 17:45 4.5m 8/7/24 Working day claimed: 08:00 to 16:00 (7 hours); LT: 15:24 1.3m plus overtime: 16.00 – 19.30 (3.5 hours) HT: 21:13 4.9m 9/7/24 Working day claimed: 08:00 to 16:00 (7 hours); LT: 15:59 1.3m plus overtime: 16.00 – 19.30 (3.5 hours) HT: 21:50 4.8m 23/7/24 Working day claimed: 08:00 to 16:00 (7 hours); LT: 14:44 1.1m plus overtime: 16.00 – 19.30 (3.5 hours) HT: 20:32 5m 24/7/24 Working day claimed: 08:00 to 16:00 (7 hours); LT: 15:26 1.1m plus overtime: 16.00 – 19.30 (3.5 hours) HT: 21:15 5m 6/8/24 Working day claimed: 08:00 to 16:00 (7 hours); LT: 15:05 1.1m plus overtime:16.00 – 19.00 (3 hours) HT: 20:49 5m 14/8/24 Working day claimed: 08:00 to 16:00 (7 hours); HT: 14:34 3.7m plus overtime:16.00 – 18.00 (2.5 hours) [sic] LT: 21:04 2.4m 17/9/24 Working day claimed: 07:00 to 14:00 (7 hours); LT: 13.16 0.7m plus overtime:15.00 – 19.30 (4.5 hours) HT: 18:54 5.5m 19/9/24 Working day claimed: 07:00 to 14:00 (7 hours); LT: 14:37 0.3m plus overtime:15.00 – 19.30 (4.5 hours) HT: 20:10 5.7m 20/9/24 Working day claimed: 07:00 to 14:00 (7 hours); LT: 15:16 0.4m plus overtime:15.00 – 19.30 (4.5 hours) HT: 20:51 5.5m 3/10/24 Working day claimed: 07:00 – 19:00 (7 hours) LT: 14:09 1m; HT plus 4 hours’ overtime. 19:46 5.1m 4/10/24 Working day claimed: 07:00 – 19:00 (7 hours) LT: 14:36 1m; HT plus 4 hours’ overtime. 20:13 5m[22]The claimant was contracted for a seven hour day. Since the van was essential for transporting the equipment for the slipway cleaning job, the investigators had checked the Masternaut tracking records for the harbour van. They used the data to prepare a report analysing the claimant’s movements as compared to his timesheets and overtime claims (280 – 290). They found that slipway cleaning had been carried out on 15 of the days when the claimant had claimed overtime for it. However, the Masternaut records showed that on all those days, the van had been driven to and from the slipway in question by someone other than the claimant and that the cleaning had been done at low tide during the working day and not during the hours the claimant had claimed overtime for it, many of which were at high tide, when slipway cleaning would be impossible. The records also showed that on 11 of the dates the claimant had claimed overtime for slipway cleaning, no slipway cleaning had been done at all. The Investigators also checked the tide tables for the area and found them to show that slipway cleaning could not be done after working hours on many of the dates when the claimant claimed overtime for this job because it can only be done 2 hours either side of low tide (“LT”). The investigators had also checked the rotas and CCTV footage.[23]During the interview under caution, the claimant admitted that he did not carry out slipway cleaning himself and that he left it to his staff. In the context of the time sheets and his claims for overtime he admitted he had not worked, he mentioned using his own car for work (240 – 3). He said he had not requested permission from his managers for this because they were “not happy to pay for that”. Mr MacRae asked him: “Did you think rightly or wrongly that if you were using your own car you were entitled to claim” The claimant interrupted: “Yes”. Mr MacRae went on: “Overtime over and above what you had worked to compensate yourself for using your fuel is that your mindset?” The claimant replied: “Yes. Maybe it makes sense maybe just a bit like that as well because”… “I just calculated the hours”. He confirmed that he was saying he had calculated the hours to compensate himself for fuel he had used.[24]In 2024, renovations had been done to Uig Harbour to upgrade the port as a ferry terminal. Various buildings were added and a glass and perspex pedestrian walkway was added. The contractor was a firm called R.J. Macleod and the various leftover materials at the site after completion were their property.[25]The investigation report (86) was issued on 7 March 2025. With regard to the possible fuel losses, the report concluded that “there was evidence to support this allegation by way of the CCTV and the admission by the Harbour Master that he was carrying fuel in the containers. He has also failed to provide a satisfactory explanation to explain his actions. Weaknesses in the control arrangements surrounding the storage of red diesel fuel at Uig Harbour could allow unauthorised access to fuel.”[26]In relation to the overtime, the report concluded: “We found that the Harbour Master was self-authorising overtime claims. There was a lack of robust evidence to fully support all overtime claimed by the Harbour Master. There was evidence to show that fraudulent overtime claims have been made and this has been confirmed by the Harbour Master.” The report stated that: “On 14 occasions out of the 26 dates reviewed (54%) the Harbour Master had claimed overtime for working extra hours. However, the vehicle tracking system showed the van had finished its journey for the day close to the home of the Harbour Master at a time prior to the finish time claimed for overtime by the Harbour Master. These differences would indicate that the overtime claimed was not actually worked.” Two examples were given in the report regarding slipway cleaning claims the claimant had made. The report noted that the van is required for slipway cleaning to transport the equipment used. i. Additional overtime hours were claimed for slipway cleaning on 10 April 2024 from 16:30 to 19:30. However, the Masternaut tracker showed that the works van did not attend a slipway on that date. The tracker showed that the van ended its movement for the day at 16:43 parked near the claimant’s home in Portree after being driven there from Uig. ii. On 11 April 2024, the claimant’s work hours were recorded as 8.30 to 16:30 with overtime worked from 16:30 to 19:30 slipway cleaning. However, the tracker showed the van did not attend a slipway that day and that it ended its movements at 12:51 parked near the claimant’s home. The claimant stated that he parked there and walked to Portree. However, there was no operational need for him to park at his home and walk 12 minutes to Portree harbour.[27]The report stated that in 24 of the 26 overtime claims reviewed, the claimant had stated that he was carrying out slipway cleaning. However, he had confirmed in the interview that he does not carry out this duty. It is done by the assistant harbour masters. In some instances, review of the times the slipway cleaning was stated to have been carried out was not consistent with the low water tide times required to do it. The report stated: “The Harbour Master was aware that his claims were not appropriately authorised, and admitted that he had claimed overtime to cover the use of his own vehicle because he was not allowed to claim mileage for it.” In conclusion of this section, the report stated: “There was evidence to show that fraudulent overtime claims have been made and this has been confirmed by the Harbour Master.” On the basis of the claimant’s overtime sheets, the tide tables and the Masternaut data, together with the claimant’s admissions, the investigators concluded that there was a case to answer that the claimant had fraudulently claimed in respect of overtime he had not worked. Over the period reviewed from 1 April to 15 October 2024, this amounted to around £7,000.[28]Finally, the report referred to two panes of glass found in the van when the claimant was suspended and stated: “When asked at interview about the glass, he admitted that he was taking them home as they were unused, and had been left for a month, so he had taken them.” The claimant told the investigators (169) he did not see any difficulty with doing so.[29]When the report was completed, it was sent to Mrs Urry. She then arranged to meet with the investigators. They talked her through their findings and showed her the CCTV footage.[30]By letter dated 20 March 2025 (79) Mrs Urry invited the claimant to a disciplinary hearing on 2 April 2025 to consider the following allegations of gross misconduct against him:• “Following a review of CCTV footage you were seen on Monday 23 September 2024, Friday 11 October 2024, and Tuesday 15 October 2024 to be taking quantities of marine diesel in black 25 litre containers and there was no known operational reason for this.• That you falsified overtime claims between 1 April 2024 and 15 October 2024 and authorised your own overtime claims, contrary to the Financial Regulations which state that Officers will not authorise transactions in which they have a personal interest.• On 16 October 2024 you took council materials (glass panes) for your own private use.”[31]The letter informed the claimant of his right to be represented by a trade union representative or another representative of his choice. It explained that a possible outcome of the hearing was the claimant’s dismissal. A copy of the summary investigation report (86 – 91) was enclosed with the letter. However, the claimant was not sent the documents referred to in the report upon which the conclusions of the report relied. In particular, he was not sent the copy time sheets; tide table information and ‘analysis of overtime claims document’ (280 – 90) which contained relevant extracts from the Masternaut tracking data.[32]The claimant attended the disciplinary hearing. He chose not to be represented. The hearing was also attended by Frances Smith from HR. A minute was taken. Mr MacKay was called to give evidence. The claimant did not call any witnesses or present any documentary evidence.[33]Mrs Urry considered the evidence before her as set out in the Corporate Audit Team’s summary report (86) and discussed at the disciplinary hearing. She concluded on a balance of probabilities that the allegations against the claimant were proved and that they amounted to gross misconduct. The grounds for her belief were summarised in the investigation report and were confirmed to the claimant by her to be that:• “You have admitted to falsifying overtime claims in order to cover the use of your own vehicle, for which you were unable to claim mileage. You advised that you had used your own vehicle for work purposes because your wife was a passenger and she needed to be transported to health appointments, which coincided with your inspection of slipways. This was clearly inappropriate.• You have admitted to the taking of Council materials, i.e. glass panels which were being retained for spare/replacement of the passenger walkway. You advised that you had considered using them for works to your home but had subsequently changed your mind. However, these items were in your work van on the day of your suspension.• Evidence was captured on CCTV of you moving fuel containers, and there are discrepancies in the records held regarding fuel sales and fuel stocks which cannot be reconciled. A container of red diesel was found in your work van on the day of your suspension. You admitted that 60 litres of fuel which had been drawn off through testing of the new fuel system and was not to be sold, had been sold by you, together with an additional 25 litres for which there was no payment receipt recorded. Whilst you provided reasons for these activities, sufficient evidence to substantiate these explanations was not provided at the hearing, or at the interview with corporate fraud team which was taken under caution. There were also inconsistencies in the responses you provided at the two meetings.”[34]Mrs Urry considered what the appropriate sanction should be. She considered lesser sanctions than dismissal but concluded that because the allegations amounted to theft and fraud, and because the claimant was in a position of trust, dismissal was the only appropriate sanction. She confirmed her decision in a letter to the claimant dated 8 April 2025 (81). The letter explained her decision and the reasons for it. It advised the claimant of his right of appeal.[35]The claimant appealed against his dismissal and a hearing was held before the respondent’s Appeals and Disputes Committee (made up of five councillors) on 16 June 2025 (84). The claimant attended by MSTeams. Mrs Urry attended to present the management case for dismissal. The Committee decided unanimously to uphold the decision to dismiss the claimant. He was advised by letter dated 17 June 2025 (85) that his appeal had been unsuccessful. Observations on the evidence[36]With regard to the panes of glass found in the works van on the day of his suspension, the claimant told us he had the contractor’s permission to take the glass. However, he did not take us to any document suggesting he had said this to the respondent during the investigatory or disciplinary process. Indeed, the transcript of the investigation to which we were taken by the respondent (169) showed that the claimant’s explanation was that the glass had been left by the contractor for a month, so he thought it was alright to take it. He did not tell the respondent at the time that he had the contractor’s permission. Indeed, he admitted that he had not asked anyone: “AM: So just to clarify, did you take it upon yourself, you you didn’t ask anybody” SV: “No” AM: “You saw that lying there” SV: “Yeah” AM: “And you decided to take that” SV: “Yeah”. It was unhelpful for the claimant to give an explanation to the tribunal which was inconsistent with the explanation he gave to the respondent.[37]There were other inconsistencies in the claimant’s evidence. For example, during cross examination, the claimant complained that the respondent had not produced pictures of the glass found in the passenger seat of the van on the day of his suspension. Mr Whillans asked him why he was now disputing that the glass was in the van when he had told the respondent he had put it there. The claimant replied that he had put it on the passenger seat so as not to break the glass. As Mr Whillans submitted, the claimant also stated in evidence before the Tribunal that he did not know what the liquid was in the opaque container he was carrying in the CCTV footage on 23 September 2024. However, he had admitted to the investigators that it was red diesel when they asked him during the investigation (140). For these reasons, where there was a conflict between the claimant’s evidence and that of the respondent’s witnesses, we preferred the latter.[38]We were not taken to any minute of the disciplinary hearing. Indeed, it did not appear to be in the bundle of documents. It was thus unclear what evidence had been presented at the hearing. The claimant stated he had not received the underlying evidence and this was the focus of much of his cross examination of Mrs Urry. This seemed to be consistent with Mrs Urry’s testimony, when she stated in cross examination: “I relied on the report from the audit officers. No additional written evidence was provided at the hearing.” The claimant asked her: “If you had had the Court bundle with all the evidence provided, would you have made a different decision?” Mrs Urry replied: “I made the decision based on the information I had available to me at the time. I did not have the Masternaut tracking information at the hearing. The reason for the decision was because you admitted at the hearing you claimed overtime for work you had not undertaken.” She also stated: “You claimed for the cleaning of slipways which you agreed at the hearing you did not do.” Discussion and decision Was the dismissal unfair?[39]Section 98 of the Employment Rights Act 1996 indicates how a tribunal should approach the question of whether a dismissal is fair. There are two stages. The first stage is for the employer to show the reason for the dismissal and that it is a potentially fair reason. A reason relating to the conduct of the employee is a potentially fair reason under Section 98(2).[40]To establish that a dismissal was on the grounds of conduct, the employer must show that the person who made the decision to dismiss the claimant (in this case Mrs Urry) believed that he was guilty of misconduct. Thereafter the Employment Tribunal must be satisfied that there were reasonable grounds for that belief and that at the time the dismissing officer reached that belief on those grounds the respondent had conducted an investigation that was within the range of reasonable investigations a reasonable employer might have conducted in the circumstances. The onus is neutral in relation to the grounds for the respondent’s belief and the sufficiency of the investigation.[41]In this case, it was clear that Mrs Urry believed the claimant guilty of the misconduct alleged and we accepted her testimony to this effect. The grounds for her belief in his misconduct were as follows: “You have admitted to falsifying overtime claims in order to cover the use of your own vehicle, for which you were unable to claim mileage. You advised that you had used your own vehicle for work purposes because your wife was a passenger and she needed to be transported to health appointments, which coincided with your inspection of slipways. This was clearly inappropriate. // “You have admitted to the taking of Council materials, i.e. glass panels which were being retained for spare/replacement of the passenger walkway. You advised that you had considered using them for works to your home but had subsequently changed your mind. However, these items were in your work van on the day of your suspension.” // “Evidence was captured on CCTV of you moving fuel containers, and there are discrepancies in the records held regarding fuel sales and fuel stocks which cannot be reconciled. A container of red diesel was found in your work van on the day of your suspension. You admitted that 60 litres of fuel which had been drawn off through testing of the new fuel system and was not to be sold, had been sold by you, together with an additional 25 litres for which there was no payment receipt recorded.”[42]Together with the other information Mrs Urry had before her, these were reasonable grounds for believing the claimant guilty of misconduct. At the point where she reached that belief on those grounds, the respondent had done a thorough investigation. We therefore concluded that the respondent had established the reason for dismissal being the claimant’s conduct.[43]If the employer is successful in establishing the reason, the tribunal must then move on to the second stage and apply Section 98(4) which provides: “…where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) depends on whether in the circumstances (including the size 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.”[44]In applying that section, the Tribunal must consider whether the procedure used by the respondent in coming to its decision was within the range of reasonable procedures a reasonable employer might have used. We concluded that the procedure used in this case was not within the band of reasonable procedures a reasonable employer might have used in the circumstances for the following reasons. Firstly, the initial allegations concerned fuel discrepancies, possibly involving the claimant and reports that the claimant had been seen moving containers of fuel when there was no operational reason for doing so. These had been shared with Mrs Urry by the Harbours Manager Mr Seddon. She had also been privy to the results of the initial investigation by the Marine Superintendent showing significant fuel level variances, which could not be reconciled with the paperwork. On the basis of this information, Mrs Urry had taken the decision to suspend the claimant pending investigation and had written him a letter to that effect (74). It was then Mrs Urry who had instructed the Corporate Audit Team to investigate and she testified that when they had finished their investigation, the Corporate Audit Team investigators had met with her and talked her through their findings and the CCTV footage of the claimant. In these circumstances, it was unlikely that Mrs Urry would be able to approach the disciplinary hearing impartially. The respondent is a local authority and its size and administrative resources are such that someone else within the respondent (perhaps the head of another service) could have been found to conduct the disciplinary hearing.[45]Secondly, the claimant was sent the Corporate Audit Team investigators’ summary report along with the invite letter to the disciplinary hearing. However, the underlying evidence on which it is based (the analysis of overtime claims containing the Masternaut information (280 – 90); the copies of his time sheets (273 - 9); and the tide tables relied upon (291 – 6) were not shared with him. We considered that this would have made it difficult for him to prepare for the disciplinary and appeal hearings. We concluded that the combined effect of these two matters was to take the procedure used by the respondent outside the band of reasonable procedures a reasonable employer might have used in the circumstances of this case. It follows that the dismissal was unfair. Remedy Basic award Conduct before the dismissal
Remedy
[46]Ordinarily, an employee found to have been unfairly dismissed would be entitled to a basic award. In this case, the Tribunal concluded that the basic award should be nil to reflect the claimant’s misconduct. Section 122(2) of ERA provides as follows: “(2) Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.”[47]In view of the admitted conduct of the claimant before dismissal in claiming numerous overtime payments for slipway cleaning which he had not carried out, we consider that it would be just and equitable to reduce the basic award to nil. The evidence before the tribunal in relation to this issue was overwhelming. The claimant’s time sheets (273 – 9) contained overtime claims for slipway cleaning (summarised at paragraph 21 above) which he admitted both to the respondent and to us that he had not carried out. During the investigation meeting and at the disciplinary hearing he had said he claimed these in lieu of mileage claims for the use of his own car. However, during the course of his cross examination of Mrs Urry the claimant put to her an explanation for his overtime claims he had not previously given: “If I was not involved in this [slipway cleaning], I was sitting in the harbour until the last ferry.” He then developed this further in his own evidence in chief: “I put slipway cleaning because people were doing slipway cleaning and I was four hours sitting in the office.” This did not appear to have been an explanation the claimant had given to the respondent at any point during the disciplinary process and it was not, therefore relevant to whether the dismissal was unfair. The respondent could only rely on the explanations before them. (As Mrs Urry testified, the explanation given at the time was entirely different - that he could not claim for car mileage because his wife was in the car at the time.) The new explanation might, if true, potentially be relevant to contributory fault. However, the detail of the evidence led by the respondent before the Tribunal (regarding the Masternaut data 280 – 90 and the tide tables) demonstrated (and for the purposes of remedy we find this as fact): a) that on 11 of the dates for which the claimant had claimed overtime, no slipway cleaning was done by anyone; and b) that on the dates slipway cleaning was carried out by the AHMs, it was done during normal working hours and the van was driven back to Uig harbour before the end of the working day. The claimant had then used his own fob to drive the van back to his home, where the van finished up for the day (280 – 290). Thus the Masternaut data, tide tables and other evidence demonstrated that slipway cleaning was not carried out by anyone during almost all of the hours the claimant had claimed as overtime and the claimant’s new explanation could not therefore be true. Compensatory award[48]Section 123(1) ERA provides that the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances, having regard to the loss sustained by the claimant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. The likelihood that a fair dismissal would have occurred in any event[49]In determining what sum would be just and equitable in the circumstances under section 123(1) we must consider the likelihood that the claimant might have been fairly dismissed in any event pursuant to Polkey v A E Dayton Services Ltd 1988 ICR 142 HL. We have assessed the likelihood of this at 100% on the basis that, on the facts found, it was inevitable that a fair procedure would have reached the same result. As stated above, there was overwhelming evidence (including his own admission) that the claimant had claimed payment for overtime he had not worked on numerous occasions. The role of harbour master was one of considerable trust. In these circumstances, dismissal as a sanction would clearly have been not only within the band of reasonable responses a reasonable employer might have adopted to the conduct in question, but inevitable.[50]It follows that in these circumstances the claimant is not entitled to an award of compensation. Contributory Fault[51]Had it been necessary to do so, we would have found the claimant’s dismissal was caused by his actions. Section 123(6) of ERA provides that: “(6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”[52]We have concluded that the claimant’s dismissal was caused by his actions in failing to follow the respondent’s procedures and instructions with regard to the handling and sale of red diesel; and in falsifying overtime claims. We would have assessed his contribution at 100%. The claimant is not entitled to compensation.