Background
In 2015, Camden Council in London put a new contract out to tender, which included street lighting in the borough. The manager responsible, J Thornhill, was to assess what was contractually required for the tender.
In September, Thornhill’s son was hospitalised after a serious road accident. Consequently, Thornhill’s son underwent several operations, having part of his leg amputated. This led to Thornhill experiencing considerable emotional stress.
Thornhill requested that he be removed from the tender process and the panel. This request was declined as there was no one else available with comparable expertise.
On 1 October, Thornhill’s manager, Iona Goodchild, sent Thornhill a pricing document submitted by the council’s current provider.
On 9 November, Goodchild sent Thornhill another pricing document from the council’s current provider. On both occasions, this document was allegedly used to amend the quantities required on the tender to align with the council’s budget.
On 11 December, the contract was awarded to the current provider.
Following a competing contractor challenging the fairness of the tendering process, the council opened an internal investigation. Central to this was Thornhill having seen the pricing document. An audit was requested in November 2016.
Thornhill cooperated with the auditors and investigators. However, as a result of being signed off on long-term sick leave with depression and post-traumatic stress syndrome in March 2017, Thornhill was not requested to attend any more meetings.
A disciplinary hearing took place in August 2017 regarding Thornhill’s knowledge of commercial information which affected the tender process and his failure to declare the sharing of the pricing document and his involvement with helping to obtain rugby tickets for an employee of the council’s current provider during the tender process.
On 4 September 2017, Thornhill was dismissed with immediate effect due to gross misconduct.
Decision
The employment tribunal found the investigation that led to Thornhill’s dismissal was flawed.
The tribunal decided that the council manager must be reinstated in his job and paid £100,618 in lost wages after his claim of unfair dismissal was upheld.
Reasoning
The tribunal held that despite the reason for Thornhill’s dismissal being “potentially fair”, “no reasonable employer would have concluded that Thornhill had acted dishonestly and/or committed gross misconduct under these circumstances”.
It was noted that during the internal audit, it was never explained to Thornhill that he was being investigated for dishonesty or fraud, preventing him from responding fully to allegations at the disciplinary hearing.
A lot of the evidence in the audit was redacted or not provided, with minutes only existing for one of the five meetings held between the auditors and Thornhill.
The judge held that it weighed heavily in mitigation that Thornhill had received no formal training in tender handling and had requested that he be removed from the process because of his son’s accident.
Thornhill questioned the pricing information which he was sent by his manager. However, he was told that, as long he did not share this with others, it was fine.
Impact
This serves as a reminder that basic errors and omissions fatally undermine an investigatory process. Content in meetings needs to be meticulously recorded and an account taken of evidence which supports the employee.
This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Employment Team at Cleaver Fulton Rankin for further advice or information.
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