THE INDUSTRIAL TRIBUNALS  

CASE REF:    847/13  

CLAIMANT:	William Moore

RESPONDENT:	Michelin Tyre Plc

DECISION

The unanimous decision of the tribunal is that the claimant was fairly dismissed and the claimant’s unfair dismissal complaint is dismissed.

Constitution of Tribunal:

Chairman:	Ms M Bell

Members:	Mr A Barron
	Mrs V J Foster

Appearances:

The claimant was represented by Mr S Brown, Solicitor, of Orr and Company Solicitors.

The respondent was represented by Ms R Best, Barrister-at-Law, instructed by Addleshaw Goddard LLP Solicitors.

1.	The claimant complained in his claim that following him pleading guilty to seven counts of offences of outraging public decency on 21 January 2013 in respect of offences committed in August 2009 that he was unfairly dismissed by the respondent for bringing the name of the respondent into disrepute in light of recent media coverage of the charges and his subsequent plea of guilty, and, that as a result of the charges there was an irretrievable breakdown in trust and confidence between himself and the respondent.  The claimant complained that two members of the respondent’s staff out of a total of some 1,000 made anonymous complaints about him and disputed the grounds of complaint raised against him because he considered that:-

	●	he had not breached his contract of employment;

	●	his offences did not constitute gross misconduct as alleged in the company handbook, he remained competent to carry out his duties as required under his contract of employment;

	●	there had been no publication of the name of the respondent in any media coverage as alleged;

	●	he had not had the chance to properly deal with the alleged anonymous complaints.

2.	The respondent in its response resisted the claimant’s claims on the basis that the claimant was dismissed for a reason relating to his conduct and/or for some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held as a consequence of an irretrievable breakdown in trust and confidence between the claimant and the respondent.  Also, that the claimant was dismissed after a full and reasonable investigation and at the conclusion of a fair dismissal process.

3.	At the outset of the hearing Mr Brown made an application on behalf of the claimant that the tribunal exercise its power under Rule 49 of the Industrial Tribunal Rules of Procedure set out in Schedule One of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 to omit any reference to the matter save for the decision itself from any public record because the nature of the charges brought against the claimant from which the respondent’s decision to dismiss arose involved a sexual element.  Ms Best also suggested that consideration be given to a restricted reporting order under Rule 50 of the Industrial Tribunal Rules of Procedure.  The applications were declined in light of the dismissal relating to a criminal conviction which was already a matter of public record.

4.	Also at the beginning of the hearing parties referred to a bundle of photographs available for sight of the tribunal if the tribunal wished to view them comprising of photographs of a similar nature to those upon which the criminal charges had been based to which the claimant had pleaded guilty, the original photographs having been deleted.  The tribunal directed that it did not consider the photographs relevant evidence for consideration by the tribunal the task for the tribunal being to judge the reasonableness of the respondent’s actions in the circumstances of the case, not to retry the case against a claimant. 

ISSUES

5.	The issues before the tribunal for determination were as follows:-

	(a)	Was the dismissal automatically unfair for failure to follow the statutory disciplinary and dismissal procedures?

	Otherwise,

	(b)	Has the respondent shown the reason for dismissal?

	(c)	Was it for a reason relating to the conduct of the claimant or for some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the claimant held?

	If so,

	(d)	Did the respondent act reasonably in treating the reason as a sufficient reason for the dismissal?  

EVIDENCE

6.	The tribunal considered the claim, response, agreed documentation comprising of a hearing bundle, booklet of mitigation, schedule of loss and witness statements of Mr Jonathan Wright (the respondent’s head of production), Ms Katherine Simpson (the respondent’s factory personnel manager), a supplementary statement from Ms Simpson and a statement from the claimant. Oral evidence was heard from Mr Wright, Ms Simpson and from the claimant.

FINDINGS OF FACT

7.	The claimant, born on 27 January 1972, was employed by the respondent as a variable contract production employee from 20 August 2007 until he was dismissed on 28 February 2013, his effective date of termination.  The claimant was paid £443.00 gross per week being £335.30 net on average.

8.	In its disciplinary and grievance procedures the respondent set out examples of gross misconduct that highlighted that it was “not an exhaustive or exclusive list, and there may be other breaches of Discipline of similar gravity which the company may consider to be gross misconduct”.

9.	At the time of his dismissal the claimant was employed within a production team of nine employees all of whom were male and was part of a production business unit of 35 staff. 

10.	The claimant’s role essentially involved operating machines which cut material for use in the respondent’s tyre building workshop.  Normally the claimant worked in two particular areas of the workshop.  For the majority of the time the claimant worked within the main workshop area operating a cutter machine on his own with other production operators working at different machines within about 100 metres of the claimant.  Additionally, the claimant worked at the Fischer cutter, a machine which required two to three operators, in a separate building.  The claimant worked on a rotating shift pattern carrying out 12 hour shifts either during the day or at night.  The fabric business unit where the claimant worked for the majority of his time is part of the same workshop as the tringle business unit (TBU).  The TBU team on the same shift as the claimant in January 2013 included two female employees.  The claimant had breaks during his shift when he was free to go to the respondent’s vending area and canteen to rest and mix with other staff.

11.	The respondent operates a policy known as “organisational responsibility” which means that each employee is trusted to carry out their job on the production line responsibly.  The claimant and the other production operators were expected by the respondent to manage themselves and their time in order to keep production going at the required level.  Operators have a high degree of autonomy and responsibility.  The claimant’s line manager, Mr Jackson Currie, one of the respondent’s Business Unit Leaders, would complete a workshop tour twice a day to check everything was in order, during the Monday to Friday shifts only.  Outside of the mid-week day shifts, the only management presence on site is a “flow manager” who is responsible for the flow of materials and tyres across the production workshop.  Often production operators including the claimant would work for long periods during a shift with no manager present.  As part of the respondent’s “organisational responsibility”, the claimant also had responsibility for carrying out a number of quality checks.

12.	The respondent has a code of ethics in respect of which the claimant received training on 20 November 2011.  The respondent sets out therein:-

		“We should reflect the following five Core Values on a daily basis in our actions on behalf of Michelin;

			Respect for customers.
			Respect for people.
			Respect for shareholders.
			Respect for the environment.
			Respect for the facts.

		These Core Values apply not only to the Group’s behaviour on a corporate level, but to the individual action of each employee.

		If there are certain situations that are not specifically addressed in the Code of Ethics or PRN Charter, it is important to discuss the situation with your manager and/or a legal department representative, and to do nothing that is contrary to the policies defined below.”

	A copy of these values was also set out on the respondent’s website.  Posters stating the Core Values which included “recognise and fulfil our company’s role as a responsible member of society, by practicing our values” were displayed in the workshop as well as training and meeting rooms at the claimant’s workplace throughout his employment.  The claimant was fully aware of the respondent’s core values within which it endeavoured to operate its business.  The claimant was issued with a copy of the respondent’s equal opportunities policy when he commenced his employment which provides for every employee’s right to be treated with dignity and respect at work and states the respondent’s commitment to ensuring that unacceptable and potentially unlawful behaviour in the form of harassment, does not take place.  

13.	On or around 21 January 2013 an employee of the respondent within the claimant’s workshop alerted Mr Stephen Hayes the respondent’s workshop manager, to a BBC news press report which set out as follows:-

		“Man ‘photographed women’s bodies’ in Newtownards and Bangor.

		A Ballymena man who took photographs of parts of women’s bodies without them knowing has pleaded guilty to eight charges at Downpatrick Crown Court.

		William Moore, 40, from Old Cushendun Road, took the pictures with a camera, hidden in a box with holes in it.

		The offences happened in Newtownards town centre and Bloomfield shopping centre in Bangor in August 2009.

		Moore was charged with committing an act of a lewd, obscene and disgusting nature and outraging public decency.

		He photographed his victims without their consent, while usually talking to them, when they were with their children.

		His victims were fully clothed and did not know Moore, nor that he was secretly photographing some of them as they bent over.

		He was released on bail and is due to be sentenced next month.”

14.	Mr Hayes immediately notified Mr Jackson Currie the claimant’s line manager of the press report.

15.	On Tuesday, 23 January 2013, the claimant who had booked the week off work on holiday telephoned Mr Currie to see if he was needed because he was now in a position to work.  Whilst on the telephone Mr Currie asked the claimant if he had anything to tell him, the claimant responded “you’ve read the news then”.  After establishing that the claimant was the subject of the BBC news article he was suspended by the respondent on full pay whilst an investigation was carried out.

16.	The claimant attended an investigation meeting on Monday, 28 January 2013 conducted by Mr Hayes with Mr Currie present as note taker.  The claimant attended accompanied by his trade union representative Mr Alan Pearson.  The minutes of the investigatory meeting were produced at hearing and are accepted as overall accurate save for minor points which the claimant later had the opportunity to correct at his appeal meeting.

17.	At the beginning of the investigatory meeting the claimant enquired whether there had been any formal complaints from the respondent’s employees following the article on the BBC website, the minutes record the respondent’s response as “he was told that no-one at this meeting had received a complaint but there may have been one made to some-one else in the company”.

18.	During the meeting the claimant explained the basis of his belief that there was no law against taking photographs in public places and how that in 2009 he had taken photographs of two females, whom he did not know, and their children in public.  The two females had become aware that he was doing so and had reported the matter to the police, alleging that the claimant had taken the photographs without their consent.  This led to a police investigation, resulting in the claimant being charged with seven counts of committing an act “of a lewd, obscene and disgusting nature” and “outraging public decency”.  The claimant explained that he had pleaded guilty to these charges upon the advice of his solicitor, in order to receive a more lenient sentence.  The claimant also confirmed that he had used a camera concealed within a box to take some of the photographs covered by the charges and explained that he had placed the camera in the box originally to allow it to be mounted on a motorcycle. When was asked if he thought it would have helped him had he informed the respondent of these issues earlier in the process the claimant confirmed he did not feel that this was necessary.  As the meeting ended the claimant offered the possibility of his solicitor talking to someone in the respondent company if this would help his case.  The claimant confirmed that he had no further questions before the meeting came to a close.

19.	On Mr Wright’s evidence, which the tribunal find credible, he was informed by Mr Hayes that approximately ten employees had approached him and Mr Currie expressing concerns about the claimant’s charges and that they would feel uncomfortable about working with him as a result, three of whom were female, and about the underhand way in which the claimant had allegedly taken the photographs using a camera in a concealed box. Mr Wright, because he was informed that these employees were unwilling to provide written statements due to concern over potential consequences should the claimant return to work, did not however take these views into account when reaching his decision to later dismiss the claimant.

20.	After completion of the investigatory meeting, both Mr Hayes and Mr Currie personally expressed concerns to Mr Wright about the potential management of the claimant and the impact on the team if the claimant was to return. Subsequently Mr Hayes provided a statement dated 5 February 2013 as follows:-

		“I would like to express my concerns with the possibility of William Moore returning to PEK in light of the charges that he has admitted to.  My concerns relate to the interactions between William and his colleagues, as well as any future events that may arise from the circumstances of his actions.”

21.	Mr Currie provided a statement dated 07/02/2013 as follows:-

		“I would like to express my concerns with the possibility of William Moore returning to work given the seriousness of the charges made against him and the manner in which some of the photographs were taken.  I would have reservations about the working trust that is required between him and his colleagues.”

22.	Whilst both statements were later provided to the claimant the identity of the witnesses was not revealed to him by the respondent on the basis that they wished to remain anonymous, because they did not want to jeopardise their working relationship with the claimant should he return to work.  

23.	Mr Wright believed that Mr Hayes and Mr Currie had no motive for remaining anonymous other than preserving their ongoing relationship with the claimant.  In particular, Mr Currie had worked with the claimant for five years.  Neither of them had raised any complaints about the claimant previously and had been satisfied with his performance prior to being informed of the criminal charge against him.  The tribunal accept that there was a genuine reason for the respondent to maintain Mr Hayes and Mr Currie’s anonymity and that Mr Wright considered their views to be credible.  Mr Wright believed it important to take Mr Currie’s and Mr Hayes’ concerns into account.  Following the claimant’s suggestion, Mr Gregg from Personnel who was assisting with the investigation contacted the claimant’s Solicitor, Mr Brown to clarify whether the claimant was advised by him to plead guilty and whether he could provide copies of the photographs which were used as evidence in Court.  Mr Brown confirmed that the claimant, ‘‘after careful consultation with his QC on 21 January 2013 pleaded guilty to 7 courts on the bill of indictment (1 count had already been ruled void by the Court) as he wanted to avoid a trial.  He does not face a custodial sentence”.  Mr Brown was unable to provide copy photographs as they were still evidence in the case and subject to restrictions on their dissemination. Mr Brown confirmed “each indictment (or charge) relates to a separate and particular day that Mr Moore was using his camera.  I can tell you, however, that none of the photographic exhibits themselves depict nudity or relate to children or young people.  All persons that had photographs taken of them on each of the 7 days by Mr Moore were in a public place at the time and were fully clothed”.

24.	Following conclusion of the investigation, Mr Wright decided that the claimant had a case to answer and by letter dated 26 February 2013, the claimant was invited to attend a disciplinary meeting on 28 February 2013 to be held by Mr Wright.  In its invite letter the respondent referred to the claimant’s suspension following his admission to pleading guilty on Monday 21 January 2013 at Downpatrick Crown Court to eight charges for committing acts of a lewd, obscene and disgusting nature as well as outraging public decency.  The claimant was advised of his right to be accompanied and that “the specific purpose of the hearing will be to consider the following allegations of gross misconduct that have arisen as a result of your action and the charges referred to above which may:-

(a)	Have lead to an irretrievable breakdown in trust and confidence between you and the company; and/or

(b)	Potentially bring the company into disrepute in light of the recent press conference of the charges referred to above”.

	 Copies of the BBC news press release, investigation meeting minutes and “statements from two employees of the company dated 5 and 7 February 2013 respectively expressing their concerns regarding your return to work in light of the charges” were enclosed together with the email from the claimant’s Solicitor dated 19 February 2013 and the respondent’s disciplinary procedure.  Finally, the respondent pointed out that given the seriousness of the issues if the allegations were upheld one of the possible consequences of the hearing was the claimant’s summary dismissal. 

26.	A disciplinary meeting took place on 28 February 2013 attended by the claimant accompanied by his union representative, Mr Allen, also in attendance were Mr Wright, Mr Gregg and Ms Heather Dale as note taker.  Minutes of the disciplinary hearing were produced at hearing and are accepted as accurate.  At the outset of the disciplinary meeting there was discussion surrounding inaccuracies in the minutes from the investigatory meeting and inaccuracies therein were pointed out by and on behalf of the clamant.  Mr Wright indicated the minutes were 99% correct with a few errors and that their focus was on the two elements in the disciplinary invite letter. Mr Wright went on to confirm that the issue for him was whether he could allow the claimant back to work following the issues and continued.  “This dates back to 2009, has anything in that time ever happened whilst you were in Michelin?”  The minutes record thereafter: 

“WM  –	New interest in photography had got photography magazines and from an article in magazine it said that there was no law against taking pictures in public places – realise now it’s a grey area.  It has never happened in Michelin, it would never arise in Michelin as is not allowed cameras, the policy is no cameras in work.

JW  –	People now have camera phones so hard to monitor this policy; you have never seen that as an opportunity to take photos?

WM  –	Photos I take are of random people doing random things; in Michelin people are doing the same thing all the time.

AG   –	Have you been back at Court since?

WM  –	Adjourned until 12 March.  

JA  –	He has been found guilty not sure of punishment.

WM  –	Speaking to PPS to decide how to enter plea and whether to fight it and to put in appeal, have been told it will be dealt with through probation period.  Remaining equipment will be returned and the nature of offences mean it will not go on Sex Offender’s regist[er].  Do I accept what I can live with –It’s not going on sex offender’s list but do I still fight my case.  Jury sees photos not indecent however if asked questions would I want them taking my photo without knowing?  It’s difficult to fight that.

	As for media coverage I always checked that there were no cameras about before entering/leaving court.  Media was there for another case that was happening.

JW  –	Charges 21 January.  Case now adjourned.  

WM  –	Adjourned to 12 March.  

AG  –	Why?   

WM  –	To allow assessment by probation officer to be completed it was tight timescale before and also my solicitor has requested a psychological assessment be completed and there was no time to do this before.  

JW  –	Has that happened? 

WM  –	Happening tomorrow.  It’s to show judge I am not a threat to the public, there has been no restrictions made on my movements since case began.

JW  –	Have you anything more to say.

JA  –	No that’s all we have to say.

JW  –	Would like to take 15 mins adjournment to think about what you have said. On the two points in the letter, have you anything more to say on those.

WM  –	I don’t do wrong things, I have made mistakes.  Never been in trouble before and I follow my Method of Work in Michelin – my quality results show that.  You can trust that I will continue to carry out job how I have always done it since I started.  I received text message from fellow employee asking when I was coming back as most people are ok with you.  Jackson described as being out of character for me to be in trouble and this will never happen again.  There will be no issues with my performance.  Most people are ok with me going back.  In no way have I done anything to link myself to Michelin during this time.

JW  –	Have to realise that information like this will spread through Michelin and it is already a widely known fact around the factory.  Majority of people aware of what’s happening and yes Michelin has not been named in press, but it is still widely known internally what has happened. 

	Have you anything further to add?

WM  –	Nothing further”.

28.	Following a 15 minute adjournment, the meeting restarted.  Mr Wright in reference to the anonymous statements indicated that he considered them relevant but felt that the text message the claimant had received had “nothing strong behind it”.  Minutes record thereafter:-

JW  –	“Big concern I have, is first from your own personal perspective coming back to work could lead to things being said to you about the situation, could lead to an argument or a grievance being raised.  This could then lead to gross misconduct for you or someone else in work.

	Second main concern is that employees in the workplace will feel uncomfortable, threatened due to charges that have been brought against you.

	My decision therefore is to terminate your contract with immediate effect.  I cannot put other individuals in the position where they could feel like that in work.”  

Mr Wright advised the claimant of his right of appeal and that reasons would be put in a letter to him and emphasised that “two points still stand particularly the second which is that other employees may feel threatened if you were to return to work”.

29.	By letter dated 4 March 2013, the respondent wrote to confirm its decision at the disciplinary hearing to the claimant.  The respondent set out the background of the claimant having pleaded guilty on 21 January 2013 to seven charges of public indecency and committing an act of a lewd, obscene and disgusting nature relating to events in 2009 and that the purpose of the disciplinary hearing was to consider the potential allegations of gross misconduct ,namely , an irretrievable breakdown in trust and confidence between the claimant and the respondent and/or,  potentially bringing the company into disrepute in light of the recent press coverage of the charges.  Under his conclusion and recommendation, Mr Wright set out ‘… I am not in a position to question the outcome of the criminal proceedings and must assume that the charges you pleaded guilty t[o] were well founded.  My role is to determine the impact that these charges will have on Michelin Ballymena and its employees.’  Dealing with the charge of irretrievable breakdown in trust and confidence Mr Wright stated, “I explained that I had been given 2 anonymous statements as part of the disciplinary investigation, which clearly expressed concern over your return to the workplace in light of the recent charges.  You stated that you had received a text message from an employee asking when you would return and that ‘everyone was ok with you coming back’.  However, based on the anonymous statements from the workshops, I feel that employees feel threatened and uncomfortable about your return to work in Michelin.  I am also very concerned about the situation that may arise in the workshop at some point in the future should you return to work.  You stated that you had no desire to and did not take any pictures inside the factory as Michelin’s policy preventing the use of cameras is clear.  Nonetheless, I am not convinced that you would refrain from taking pictures without employees’ consent. ” 

	In respect of potential for bringing the company into disrepute Mr Wright set out, ‘‘I stated at the outset Michelin’s name had not been mentioned in any media coverage of the case thus far.  However, my concern lies in the fact that you were charged and are an employee of the company.  Therefore, it is a risk that there could be further media coverage, which may mention Michelin as your employer, particularly at the forthcoming hearing on 12 March 2013.  In any event, we have a site of 900+ employees and very quickly word of your case has and will spread to a much wider audience.  Therefore, the potential for your actions to bring Michelin in to disrepute remains.  We also discussed your desire to keep the Court case a secret but this did not happen for reasons that you explained, this in itself concerns me and presents a risk to Michelin’s reputation”.  Mr Wright concluded that after consideration of the evidence, the claimant’s representations, employee statements, the gravity of the claimant’s actions and impact on Michelin Ballymena (and its employees); he formed the belief that the allegations were well-founded.  Mr Wright confirmed that on consideration he thought that a disciplinary sanction was appropriate; he had considered the range of sanctions available, the respondent’s disciplinary procedure, length of service and irretrievable breakdown of the relationship between the claimant and the company and concluded his decision was to terminate the claimant’s employment with immediate effect.  Mr Wright in summary set out, “The company has lost trust and confidence in you as a result of your conduct and the related criminal charges against you.  On the basis of the witness evidence gathered as part of the disciplinary investigation and given our discussions at the disciplinary hearing, I believe that there is a sufficient risk that staff at the site would feel uncomfortable with you returning to work.  I therefore conclude that there has been an irretrievable breakdown in trust and confidence between you and the company, particularly at management level.  Furthermore, the criminal proceedings could potentially bring Michelin into disrepute, with a particular risk of further media coverage at the forthcoming hearing on 12 March 2013.  In any event, the discussion of your case amongst the staff at Michelin is already widespread and could potentially further damage your working relationships as well as increase the risk of bringing the company name into disrepute”.  The claimant was advised of his right of appeal.

30.	By letter dated 5 March 2013 the claimant confirmed his wish to appeal the dismissal decision based on the following:-

	“I feel this decision is harsh as my conduct in my private life is already being dealt with by the judicial system.  Jonathan produced two anonymous statements.  He said the statements were from other employees and that they had been “gathered” as part of the investigation.  I explained that I had received a text from a co-worker on the shop floor asking when I was returning to work.  Although my text appeared to be deemed irrelevant, I believe that I have a good working relationship with my colleagues and don’t believe they would feel “threatened” by my return.  As Michelin has a policy of no photography in the workplace, I could not have misinterpreted the rules in the workplace in the way I did elsewhere.  I assure you that as I never took pictures within Michelin before, especially in being mindful of recent events, I would under no circumstances take pictures at work in the future.  

	Given the fact that these charges relate to events in 2009 and since that time Michelin has had no cause for concern about my conduct in work, or indeed my work itself, I feel it is unfair to apportion so much value to ambiguous statements from 0.02% of the workforce. 

	With regard to Jonathan’s second point of bringing the company into disrepute, I am pleased Jonathan recognised that at the time of dismissal Michelin had not been mentioned in the media coverage.  Jonathan states that his concern is that I have been charged and that the 900+ employees are spreading the word to a larger audience.  I would have expected that these other Michelin employees would have a respect for the Michelin brand and consequently demonstrate integrity and maintain confidentiality on the matter.  It seems to me, almost unimaginable that out of 900+ employees I am the only one to be charged with an offence.  Is it company policy, I wonder, that being charged with an offence automatically results in dismissal?

	I trust my past exemplary record within Michelin, along with your personal experience of my true character, will go a long way towards mitigating what was, without question, a costly and shameful mistake”.

31.	By letter dated 8 March 2013, the claimant was informed that an appeal hearing would take place on 14 March 2013 held by Ms Simpson.  

32.	The claimant attended the appeal hearing conducted by Ms Simpson on 14 March 2013 accompanied by his union representative Mr John Allen.  Also present were Mr Peter Wilkinson who Ms Simpson advised was present to ensure correct and fair process was followed and Ms Heather Dale as a note taker.  The claimant confirmed that he was challenging the decision taken; he considered that Mr Wright had opened his letter “mistakenly saying I pleaded guilty to charges that are not correct” and that there was “confusion over what I pleaded guilty to and also confusion over what the charge was.  The charge was an act of lewd, disgusting nature, outrageous of public decency …” and explained “this area of law is a grey area, can be loosely interpreted and means different things, there is several criteria which must be met to be considered this.  What I did does meet the criteria for instance it must be in public, another criteria is must be capable of being seen by two or more people and another is people feel outraged by it.

I took photos of people doing everyday things in public places, of crowds, and of couples.  So it was in public.  Will it outrage public decency?  Judge said that must be answered by Jury.  Lewd act is actual physical act of photography.  Content of photographs are they obscene and disgusting, my view, my solicitors’ view and for a time the view of the Judge was that they were not.  People are fully dressed in my photos so how obscene can they really be.  That’s way fighting this.  Jury selected was made up of 10 women and out of two reserves one guy could not turn up and was replaced by another women.

QC suggested Jury doesn’t listen to whole case, as there was a fair chance that the jury would think they wouldn’t want their photos taken without them knowing either.  Chance Jury would think this and QC had seen it happen before.  Prosecution also did not want to run case.” 

The claimant went on to state that he was advised that if he entered a guilty plea he could get a softer charge, that there would be no requirement for him to be registered on the Sex Offenders Register, no chance of a custodial sentence and his computer would be returned as there was nothing questionable on it and he had ten minutes to decide.

33.	The appeal minutes then record:-

	“JW’s letter states the basis of his opinion is on employees feeling threatened by me.  Statements are ominous and could have been written by anyone.  Dates of the statements show they are written 15 days after my court appearance.  Why wait two weeks to express your concern if you feel that threatened?

	Statements are worded the same, they are both the same length.  Maybe they have been typed and were originally handwritten which would show difference, however it appears they are written by the same person which gives a false impression.  On the statements it does not say what their concern is and how my return would be detrimental.  The statement dated 5/02/2013 is nearly word for word with what Jackson Currie said to me.

	Statement dated 07/02/2013 mentions the manner in which the photos were taken, what exactly in the manner concerns them?  Camera was inside the box, this information was not in the public domain; only people in original meeting would know that information.

	KS:	It states that information in the media coverage of the case.

	WM:	BBC coverage it states the pictures were taken in a box.  Statement however says manner in way some photos were taken.  BBC coverage suggests photos never taken outside of box.

	KS:	Yes, ok if you take word literally it could mean that.

	WM:	Two statements if do in fact originate from management would cast doubt over this whole process.  I have never taken photographs in Michelin, does JW honestly think after a 12 hour shift I want to look at photos of people in work getting in a fork lift truck or David Elliott leaning over the fisher.  It is not in black and white what I am being accused of by JW. 
		Meeting with Stephen Hayes purpose was to get the facts, company to not provide factual incidents of this - trust has been misplaced.”

34.	The claimant questioned reliance on the statements as they had not witnessed anything, put that he was aware of employees having been charged before, served in prison or in court but not dismissed and it had not been explained how Mr Wright had established that the relationship had broken down, there being nothing factual in terms of situations which might happen and he thought the respondent was just trying to reduce its workforce.  At that point, Ms Simpson asked the claimant to provide a copy of his notes which he was working from and the claimant confirmed he would.  Ms Simpson put to the claimant that the process was not a court of law, she was not a lawyer and the respondent had to make a decision on the information it had and said “JW has made his decision from the information available to him.  You feel the decision was harsh, but what did you expect the outcome to be?”  The minute’s then record:-

	“WM  -	Did not expect the company to know about it.  Thought by admitting the charges I was securing my job.

	KS  -	By ensuring you avoided any chance of a custodial sentence?

	WM  -	Yes avoided custodial sentence and it was an option a chance that could have happened.  My record in work is good I am not late, have no absence issues, my polyvalence is good and I am flexible.  Michelin have developed my skills and now I have been tossed out so readily.

	KS  -	JW discarded the text message you received from 
co-worker.  I will consider everything.  You have never taken photos in work because you knew the rules, when you took the photos did you think it was ok?

	WM  - 	Absolutely - bought magazine and it had an article in it called what is Law on Photography in Public and it said it was fine unless in police station.  Did not realise that this was open to interpretation; I would not try to upset someone deliberately.  I did not see risks; thought law was black and white.

	KS  -	Difficulty for me is that I don’t know what photos were so find that difficult.

	WM  -	I am honest person I have never disputed taking the photographs, people were upset and I reasoned with myself that people were upset  -  obscene/disgusting I accepted more than I should have taken responsibility for.

	KS  -	Media can often distort things but in these photos there were women and women with children and you had no consent.

	WM  -	Not all the photographs were of females, they were of crowds, couples, women with kids it is these photographs which became suspicious.  Do you know how the whole thing started?

	KS  -	No.

	WM  -	2 girls claimed I was a paedophile and reported me to police; they raided my house and have found that I am not a paedophile.

	KS  -	And the nature of the photos you think are ok?

	WM  -	Yes they are public scenes, would direct you to review the response from my solicitor.

	KS:	Yes I have a copy of that.  In work you have male/female colleagues, if females outside found it unacceptable, do you think females in work would find it unacceptable?

	WM:	Nothing sinister behind it, don’t work with females, Lisa and Tracey but I get on well with both of them.

	KS:	Not mentioning anyone specific just in general any females?

	WM:	Tanya Kay has known whole story and still go out for coffee with her.  If females are happy to look through the Zoo magazines left in break rooms then they will be alright having coffee with me.

	KS:	2 statements 0.02% workforce, however this % not correct as you don’t work with whole workforce.  How many people are in your team William?

	WM:	10/12 work in cutters, they are all males.

	KS:	Statements apply to direct people that work with you.

	WM:	Ones that made complaint could be anyone that is the point I’m making.

	KS:	Other people in Michelin who have been charged with offences this does not automatically mean they will be dismissed.  Company process has been followed and decision has not been taken lightly.  We have an obligation to follow up if we become aware of a charge that an employee is facing.

	WM:	Media-concern was that when charged it would be raised in media.  (JW letter.)

	KS:	Charge is serious, your intention not what outcome has been and this is still a serious charge.  Company made aware of it by another employee but it did not mean automatic dismissal.  Have you been sentenced?”

35.	In response the claimant confirmed that his sentencing had been put back and might take place the next Tuesday and that his psychological assessment had been completed and found him to be a normal person who had done something stupid, that he believed the report was to go to the courts and felt everything had been covered with Ms Simpson.  Mr Allen asked whether the respondent viewed the claimant as a threat if he came back to work, Ms Simpson responded that she did not  “think it is a threat you would take photos in work, believe threat is more if other people feel uncomfortable  -  risk of repercussions if people not comfortable.”  Mr Allan replied that the claimant understood the consequences but had the same rights as other employees and acknowledged that there was ‘‘further risk of media coverage when charged  –  no doubt of that’‘.  Ms Simpson put to the claimant that she hoped he had not taken photos in Michelin and that would be part of her consideration.  Finally, the claimant assured Ms Simpson if he was permitted back he would not be unduly sensitive or hot headed. 

36.	Notes provided by the claimant as requested to Ms Simpson summarised points raised by him at appeal and in particular that if the witness statements which had given Mr Wright the impression that workers on the shop floor felt threatened did originate from management they cast doubt on the fairness of the entire process. The claimant also confirmed therein that he had never taken pictures in Michelin.  

37.	On 24 March 2013 the claimant confirmed by e-mail that he had been sentenced to serve three years on probation.  He also indicated that he thought it would be helpful if Ms Simpson could view the photographs in question and that he would return to her in respect thereof.  He also confirmed the respondent was not mentioned in Court at his sentencing or at any previous hearings and this could be verified if necessary by Court records.

38.	Arrangements were subsequently made for Ms Simpson to attend the claimant’s solicitor’s office to view the photographs taken which were the subject of the charges to which the claimant pleaded guilty, which Ms Simpson did in April 2013 as part of her consideration of the claimant’s appeal.

39.	Also as part of her consideration of the appeal Ms Simpson put three further questions individually to Mr Hayes and Mr Currie as to:-

	(1)	What particular concerns he had about the claimant returning to work?

	(2)	In what way did he consider the claimant’s return would be detrimental to his personal circumstances or working environment?

	(3)	What was it that concerned him about “the manner” in which the photographs were taken? 

	Mr Hayes’ responses were recorded as follows:-

	1.	“I have concerns that relate to the trust that needs to exist between individuals who work together.  We should not have to think that someone in your work area may be taking photos of you alone or with others during your shift.”

	2.	“As stated above, it is a question of confidence, trust and personnel security.  Without these, you cannot be at ease.  We spend a large part of our time at work and the environment should be relaxed allowing everyone the ability to do their job.”

	3.	“The manner of the photos is only one part of the issues.  Taking them in the first place without agreement begs questions of the person’s behaviour.  The manner then makes the issue more questionable.  Most people take photos in the same way, that is openly and without deception and with the other person’s approval.  This was not the case here.”

40.	Mr Currie’s responses were recorded as follows:-

	1.	“My concerns are that with today’s mobile phones, etc, could there be a risk of William taking photos in the workplace taking into account that there are females working in our department.  Would we as employees be safe at work from William taking more photos.”

	2.	“I am concerned that if William came back to work it would lead to conflict within the department.  I am concerned that it will lead to ill-feeling in my team and I do not like working where there is an air of conflict, we should not have to work in that type of environment.”

	3.	“I was shocked over the strong wording of the charges William pleaded guilty [to], lewd and obscene.  The nature of the photos was obviously deemed unacceptable by the court; the fact that the newspaper details that the photos were taken inside a box is suspicious and makes me feel uncomfortable.”

41.	By a letter dated 19 April 2013 Ms Simpson set out her findings and decision on the appeal in light of the grounds raised after further investigations and consideration of the circumstances of the dismissal.

	Grounds of appeal were in essence summarised as follows:-

•	The anonymous statements relied on by Mr Wright were ambiguous.

•	The claimant did not believe colleagues felt threatened by his return to work and a text message from a colleague demonstrated good working relationships.

•	He had never taken photographs at work.

•	It was unfair to apportion so much value to the statement which the claimant believed were 0.02% of the workforce.

•	Whether being charged with an offence automatically results in dismissal?

•	His past clean disciplinary record and personal character should be taken into account.

42.	In her findings Ms Simpson set out that the claimant had clearly validated the offences he had been convicted of and had pleaded guilty to, namely seven acts of outraging public decency.  Also in particular in her letter at:-

	Point 1.  -  Anonymous Statements

b)	Ms Simpson referred to further investigations which she had made, provided answers to the additional questions she had put the witnesses to clarify their initial comments and pointed out the witnesses’ concerns regarding the lack of trust and confidence in the claimant as a result of his criminal convictions.  She stated that the manner in which the claimant took the photographs and fact he took photographs of such a nature “are a cause for concern for the witnesses”.  Ms Simpson concluded “in the circumstances, I am satisfied that is a reasonable view for the witness to take, and that it is a genuine view on their part”.

Points 2 & 3  -  Effect on colleagues and taking pictures at work.

c)	Ms Simpson explained her finding that she was satisfied it was reasonable for Mr Wright to take account of the impact the claimant’s conviction could have on his working relationships given the nature of the convictions on account of his duty of care to other employees, additional comments from the two witnesses and that one text message from a colleague did not demonstrate good working relationships.

d)	Ms Simpson set out her disagreement with the claimant’s contention that in his opinion the photographs in question were not obscene following her personal inspection thereof, stating “it is clear that the focus of your photographs was on women, and in particular women’s breasts.  The nature, in which some of the photos were taken (i.e. inside a box) is disturbing.  I was also shocked at the volume of photographs taken as they appeared to run to several hundreds, if not thousands.  In any event, the court has determined that the photographs were indecent and that your actions were of a criminal nature.”

e)	Ms Simpson concluded that Michelin had not been mentioned in the media but due to media coverage the claimant’s convictions were widely known amongst the workforce and therefore her conclusion was that the damage to the respondent’s reputation had already been done amongst the internal workforce.

f)	Ms Simpson disagreed with the claimant’s statements in the appeal hearing that he did not at any point in time take photos which he believed would cause upset, stating, “having inspected the photographs, I consider them to be entirely inappropriate and disturbing.  I find it worrying that you do not believe the photographs would cause upset.  I would also question why you chose to keep the camera inside a box on two occasions.  This in itself suggests a more deceitful intent”.

Point 5  -  Proportionate Value of the Anonymous Witness Statements

g)	Ms Simpson challenged the claimant’s statement that the original witness statements represented only 0.02% of the workforce on the basis that there were only 10 to 12 people working with the claimant on a regular basis and hence the statements represented approximately 16% of his immediate team.

h)	Ms Simpson confirmed the claimant was not the only employee to be charged with a criminal offence but as far as she had been made aware he was the only employee to be convicted of outraging public decency offences.  She confirmed that the respondent does not automatically dismiss in such cases but reviews each situation on a case-by-case basis giving serious consideration to the implications and impact of any conviction on the individual’s employment.  

i)	Ms Simpson referred to her having asked the claimant whether he had been sentenced on 12 March, that he had said his case had been postponed but not set for another date whereas she had established the case had in fact been rescheduled for 15 March but the claimant had chose not to share this information with her at the appeal hearing.

Point 6  -  Mitigating Factors

j)	Ms Simpson set out that she had considered the claimant’s clean disciplinary record and character as well as his length of service however that she believed the disturbing nature of his offences and the fact that his convictions had damaged in her view, the relationship between the claimant and the respondent, outweighed mitigating factors.

43.	Ms Simpson concluded in her letter that she was satisfied that Mr Wright’s decision to dismiss the claimant was appropriate in the circumstances given the nature of his criminal convictions and upheld Mr Wright’s decision to terminate the claimant’s employment.  Ms Simpson summarised “you have committed criminal offences, which have been deemed as acts of outraging public decency.  This has already damaged the relationship between you and the company and would have the potential to cause further upset amongst the workforce if you returned to work.  Furthermore, two of your colleagues (i.e. the witnesses) have expressed serious concern about your return to work given the nature of your actions.  Having inspected the photographs in person and considered all the evidence including your opinion that what you were doing was innocent, I am satisfied that the decision to dismiss you was fair and reasonable”.

44.	The claimant presented his claim to the Office of the Industrial Tribunals on 2 May 2013.

LAW RELEVANT TO LIABILTY

45.	Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer.  

46.	The Employment (Northern Ireland) Order 2003 at Schedule 1 sets out the statutory dismissal and disciplinary procedures to be followed as a bare minimum where applicable, by an employer contemplating a dismissal.  The standard procedure consists of three steps.  At Step 1 an employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee and send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.  Step 2 requires a meeting and Step 3 an appeal.

47.	A dismissal may be regarded as automatically unfair under Article 130A (1) of the 1996 Order where one of the statutory dismissal and disciplinary procedures applies in relation to the dismissal, procedure has not been completed, and, the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements, otherwise Article 130 sets out how the question of whether a dismissal is fair or unfair is to be determined.

48.	Article 130(1) of the 1996 Order provides that in determining for the purposes of this part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

	(a)	the reason (or, if more than one, the principle reason) for the dismissal, and

	(b) 	that it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

	Reasons falling within Paragraph (2) include at Article 130(b) if it relates to the conduct of the employee.

49.	Under Article 130(4) of the 1996 Order where the employer has fulfilled the requirements of Paragraph (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.

50.	It is established that the approach the tribunal should take in answering the question at Article 130(4) is as set out in the case of Iceland Frozen Foods  v  Jones [1983] ICR17, such that; 

1.	The starting point should always be the words of Article 130(4).

2.	In applying the Article an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair.

3.	In judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt from that of the employer.

4.	In many, though not all cases, there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view and another quite reasonably take another.

5.	The function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted, if the dismissal falls within the band the dismissal is fair, if the dismissal falls outside the band it is unfair.

51.	In the context of a misconduct case Arnold J in British Home Stores  v  Burchell [1980] ICR303 stated “what the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  That is really stating shortly and compendiously what is in fact more than one element.  First of all, there must be established by the employer the fact of that belief; that the employer did believe it.  Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief.  And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.  It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.

	It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances.  It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance, to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being ‘sure’, as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter ‘beyond reasonable doubt’.  The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstances be a reasonable conclusion”.

52.	Some other substantial reason is an important residual category of dismissals that are capable of being fair notwithstanding that they do not fall into any specific categories already set out at Article 130(2).

53.	Legislation is clear that in order to justify dismissal a breakdown in trust must be a “substantial reason”.  “Breakdown of trust” is not a mantra that can be mouthed whenever an employer is faced with difficulties in establishing a more conventional conduct reason for dismissal.

54.	Harvey on Industrial Relations and Employment Law Division D1 13 discusses breakdown of trust and confidence as some other substantial reason and sets out at:

	[1915]

	‘In a suitable case the employer may rely upon the breakdown in trust and confidence as a substantial reason justifying the dismissal. […]’

	[1915.01]

	‘[…] A tentative suggestion is that the position we seem to have reached is as follows:

(1)	Loss of trust should not be resorted to too readily as some form of panacea (A v B; McFarlane).

(2)	In particular, if there are specific allegations of misconduct the employer should rely primarily on those and be prepared to prove them in the normal way (a point made strongly by the Court of Appeal in Perkins in the parallel area of awkward personality).

(3)	However, in a strong enough case an allegation of (terminal) loss of trust may come within SOSR and justify dismissal (Ezsias, where arguably a vital factor was that the patient interest was suffering because of the dysfunctional nature of the hospital department).

(4)	Where this is the case, it may not be enough for the employer to establish merely the fact of that loss of trust because a tribunal may (not must) look into the background to that loss to consider the fairness of the dismissal in the light of all the facts (Sylvester).’

	[1940]

	‘By analogy with Turner v Vestric Ltd [1981] IRLR 23, [1980] ICR 528, EAT (see para [1937] ff above), every step short of dismissal should first be investigated in order to seek to effect an improvement in the relationship when there has been a breakdown in trust and confidence.  That will include considering suitable alternatives, if any.’

55.	In submissions Mr Brown advanced the case of Post Office  v  Liddiard [2001] EWCA Civ 940 which he contended suggests dismissal is only reasonable where the employee’s conduct directly affects the employer’s business, the tribunal notes however as set out in the Post Office case ‘By the time of the disciplinary proceedings the press had lost interest in the matter and no member of the public had expressed concern about the respondent’s continued employment […]’ whereas in the claimant’s case the criminal process was ongoing, the claimant had yet to be sentenced and it was the potential risk of reputational damage in combination with loss of trust in confidence that concerned the respondent.

56.	Ms Best referred to the case of Priddle  v  Dibble [1978] 1 ALL ER 1058 as setting out the approach for tribunals when considering some other substantial reason for dismissal, which sets out at paragraph d that ‘Fairness or unfairness is only to be considered once the employer has shown the reason for dismissal was either a para (2) reason or some other substantial reason of a kind such as to justify the dismissal.’  And at Paragraph f that ‘Parliament has not laid down how it should be approached.  It is therefore for the tribunal to use its own common sense and experience, and, unless it can be shown that its answer is so obviously wrong that it has or must have misdirected itself, it is not for this court to say that it has gone wrong in law.’  Mr Brown contended however that Priddle involves a statutory provision that has now been repealed and predates the enactment of the Human Rights Act under which the claimant has a right to a private life and a right to a fair hearing under Articles 8 & 6 thereof.  Ms Best also referred to the case of Leach  v  The Office of Communications (OFCOM) [2012] EWCA Civ 959 as validating a dismissal for some other substantial reason on grounds of threat to reputational interest.  Mr Brown sought to distinguish the claimant’s case from Leach which  involved strong allegations of serious sexual conduct involving children where the respondent had a statutory duty to have regard to the vulnerability of children.  The tribunal accept as put by Mr Brown that none of the cases referred to above sit squarely with the facts of this matter.

APPLICATION OF LAW TO FACTS FOUND

57.	The tribunal is satisfied that the Statutory Dismissal and Disciplinary Procedures have been complied with.  The claimant’s dismissal was accordingly not automatically unfair under Article 130A (1) of the 1996 Order.

58.	The Burden of Proof is on the respondent to establish the reason for the dismissal. The respondent proffered two reasons for the claimant’s dismissal ,namely  conduct and some other substantial reason of a kind such as to justify the dismissal of an employee holding the position the claimant held, as a consequence of an irretrievable breakdown in trust and confidence between the claimant and the respondent.  The claimant suggested that his conduct was used as an excuse and cheap way of getting rid of him at a time when the respondent was contemplating redundancies following a meeting held by it with staff in August 2012 prompted by a reduction in production demand.  The tribunal finds credible the respondent’s evidence that no forced redundancies have been made since the meeting and that the genuine purpose of the meeting was to reassure the workforce and consider increased flexibility to cope with varying production demand, it being the respondent’s wish to retain staff numbers but vary working days so as to retain full production capacity when required, rather than to commence redundancy consultations.  The tribunal are satisfied on balance that the respondent’s principal genuine reason for the claimant’s dismissal was for those set out in the disciplinary invite and dismissal letter, that is, lost trust and confidence as a result of his conduct, and that the related criminal charges and criminal proceedings against the claimant could potentially bring the respondent into disrepute.  These are not whimsical or capricious reasons but ones which the tribunal consider could justify the claimant’s dismissal and so pass as some other substantial reason which is a potentially fair reason for dismissal.  It is for the tribunal to proceed then to consider the fairness of the dismissal.

59.	Did the respondent act reasonably in treating the reason as a sufficient reason for the dismissal?

	The tribunal consider that principally the claimant was dismissed in this case for the consequences of his conduct of taking photographs which led to his convictions rather than the actual conduct itself.  

60.	It is the tribunal’s role to apply the objective standards of the hypothetical reasonable employer to all aspects of the question whether the claimant was fairly and reasonably dismissed.

61.	Mr Brown referred to considerations (including the effect of the conviction on  suitability to do the job, relationship with employer, work colleagues or customers, nature of offence, nature of work, contact with other employees and the public, and employee’s status) set out in the ACAS disciplinary code of practice such that a criminal offence is not itself a reason for disciplinary action and based thereon submitted that the claimant had no contact with the public, that  the respondent company is of a size that it could easily have managed the claimant’s return to work and the penalty imposed by the court did not affect his ability to attend to work.  It was however the resulting breakdown in trust and concern of reputational damage rather than principally the actual conduct which lead to the claimant’s dismissal.  The respondent never the less approached this matter as it should a misconduct issue rather than simply endeavouring to rely on a ‘mantra’ of breakdown of trust and whilst the Burchell test is the recommended approach for judging reasonableness in dismissals for misconduct the tribunal consider it is still a good guide for the tribunal in considering fairness in a case such as this. 
 
62.	The tribunal found Mr Wright and Ms Simpson credible witnesses and on balance is satisfied that they reasonably concluded that trust and confidence of the  respondent in the claimant had irretrievably broken down and that there was a real risk of reputational damage to the respondent. 

63.	In looking behind the loss of trust and confidence the tribunal is satisfied on balance that the respondent had reasonable grounds based on the statements provided by management responsible for the claimant, Mr Hayes and Mr Currie expressing concerns as to their loss of confidence and the effect should the claimant return to work, also Ms Simpson’s worry that the claimant did not believe the photographs  would cause upset which she on inspection considered entirely inappropriate and disturbing, and the claimant’s lack of candour with the respondent in respect of the criminal proceedings against him including at the appeal meeting as to the postponed date he was to be sentenced on.

64.	In particular in relation to the witness statements the tribunal notes that Mr Currie and Mr Hayes did not wish their identity to be revealed for fear of damaging their ongoing working relationship with the claimant, there is no evidence of any malice or bad feeling between the claimant and Mr Hayes and Mr Currie or motive to prompt them to conspire against him.  Ms Simpson in her investigation put further questions to Mr Hayes and Mr Currie to test the veracity of their statements given the claimant’s concerns as to their similarities.  The tribunal is satisfied that despite the anonymity of the statement givers the claimant correctly guessed their identities and had fair opportunity to challenge them.  Whilst reliance on subsequently provided witness statements of those say involved in the investigation of acts of disputed misconduct might taint fairness of the procedure leading to a dismissal by reason of misconduct, the tribunal considers that this case differs in that the guilty plea leading to conviction was not in dispute and that the concerns expressed subsequently arose following the individuals responsible for managing the claimant becoming aware of the circumstances giving rise to the convictions.  The tribunal is persuaded that the respondent considered the witnesses concerns genuine and their doing so was within the range of responses of a reasonable employer.

65.	The tribunal is satisfied that the respondent provided the claimant a fair hearing, allowed the claimant to know the case against him and to respond fully and in particular that Ms Simpson was open to further enquiry as shown by the further questions she put to Mr Hayes and Mr Currie and her willingness to contact the claimant’s solicitor at the claimant’s suggestion and her viewing of photographs taken by the claimant.

66.	The tribunal is satisfied that Ms Simpson considered matters raised by the claimant at the appeal meeting to his treatment being different to that of other employee’s charged with a criminal offence and that she reasonably distinguished the claimant’s case from others in that no other employee had been convicted of outraging pubic decency. 

67.	The tribunal on balance consider that the respondent carried out as much investigation as was reasonable in the circumstances and the tribunal does not consider that there has been unjustified interference with claimant’s private life and is satisfied that overall the dismissal was procedurally fair.  

68.	The claimant at hearing put that there has been no reputational damage to the respondent, the tribunal must however consider the position at the time the decision to dismiss was made and upheld.  The tribunal find that at the time of the dismissal Mr Wright and Ms Simpson genuinely believed there to be a real potential risk of damage particularly at the claimant’s upcoming sentencing hearing and that Ms Simpson believed due to media coverage the claimant’s convictions were widely known amongst the workforce and actual damage had been done internally to the respondent’s reputation.  The tribunal consider the respondent held a reasonable belief in potential reputational damage based on reasonable grounds.  

69.	Was dismissal within the range of reasonable responses of a reasonable employer?  

	Given in particular the respondent’s code of ethics, which the claimant was aware of, and included respect for people and respect for shareholders, the respondent’s working policy of ‘organisational responsibility’ which leaves employee’s working with a high degree of autonomy and minimal management in combination with the respondent’s concern of reputational damage the tribunal consider that the decision of the respondent to dismiss despite the claimant’s employment  record and without then taking further steps to seek to effect an improvement in the relationship fell within a band of reasonable responses of a reasonable employer.   

70.	The tribunal find that in all the circumstances including the size and administrative resources of the respondent’s undertaking the respondent acted reasonably in treating the irretrievable breakdown in trust and confidence between it and the claimant and potential for bringing the respondent into disrepute as sufficient reason for dismissing the claimant determined in accordance with equity and the substantial merits of the case and that the claimant’s dismissal was fair under Article 130 of the 1996 Order.

CONCLUSIONS

71.	The tribunal finds that the claimant has been fairly dismissed and dismisses his claim of unfair dismissal.

Chairman:

Date and place of hearing:  23 and 24 October 2013, Belfast.

Date decision recorded in register and issued to parties: