Mr Joseph Smith v Represented by: Mr S Devine Consultant North Ayrshire Council — 2017

Mr Joseph Smith was employed by North Ayrshire Council from 3 November 2003 until his dismissal on 29 April 2016. He had been Senior Manager for Road and Transportation since February 2012. The case arose after an anonymous note alleged procurement irregularities in the Roads Service and referred to a Court of Session judgment involving McGivney Construction Ltd and Glen Maree Contracts Ltd. The respondent investigated Mr Gooding first, then investigated the claimant after statements from Mr Gooding and Mr Forsyth suggested that the claimant had known about the procurement irregularities and the court case and had not escalated them.

The tribunal accepted the evidence of the respondent's witnesses and found that Mr McCutcheon, who took the dismissal decision, had a genuine and reasonable belief that the claimant knew about the procurement breaches and the court case, had seen Mr Gooding's witness statement, and had deliberately not raised the matter with management. It held that the investigation carried out by Mr Borthwick and the later disciplinary investigation were within the range of reasonable responses. The tribunal considered that Mr McCutcheon was entitled to prefer the accounts given by Mr Gooding and Mr Forsyth over the claimant's denials, and that there were reasonable grounds for concluding that the claimant had been dishonest.

The tribunal also considered the procedural complaints raised by the claimant, including the wording of the invitation letters, the absence of an express statement that dismissal was a possible outcome, the length and review of suspension, and the refusal to permit Mr Devine to act as representative at the appeal stage. It found that the omission in the letters was an administrative oversight and that the claimant would have known dismissal was a possible consequence of the process. It accepted that the claimant chose to proceed unaccompanied at the investigatory and disciplinary hearings, and it found that the appeal process, including the arrangement allowing him to consult Mr Devine during the hearing, was reasonable.

Applying section 98 of the Employment Rights Act 1996 and the Burchell test, and taking account of the range of reasonable responses approach, the tribunal concluded that the dismissal was fair. Because it dismissed the unfair dismissal claim, it did not go on to determine remedy.