Camden Council has been ordered by a tribunal to reemploy a former manager and pay him £100,618 after a failed attempt to sack him.
Mr Thornhill was a street lighting and drainage manager and had worked at the council for 37 years until he was sacked for mishandling a procurement process. However, the manager was never informed that he was under investigation. Mr Thornhill took his case to an employment tribunal who upheld his claim of unfair dismissal. The council must pay the manager the weekly rate of £990.86 on an ongoing basis until he is fully reinstated.
Irregularities in tender process
The Central London Employment Tribunal was told that Mr Thornhill was accused of not reporting possible irregularities in a tender process. He was also accused of not informing his employer about contact with one of the companies bidding for the tender. However, Mr Thornhill claimed he had asked to be removed from the procurement process altogether as he was at the time dealing with his son who had been hospitalised after an accident.
The tribunal judge found that the investigation that led to Mr Thornhill’s firing was “seriously flawed” and described part of the evidence used for the disciplinary hearing as “meaningless”.
Tender for street lighting
Camden Council had put out to tender a new contract in 2015 which covered street lighting in the borough. It was Mr Thornhill’s responsibility to assess what was required in the contract to enable contractors to submit their tenders.
Later that year, Mr Thornhill’s son was involved in a serious road accident and was hospitalised for a long time. During this period, Mr Thornhill’s son underwent five serious operations. Mr Thornhill, distracted by what was happening with his son, said his mind was “all over the place”. He had asked to be removed from the tender process and evaluation panel. However, he was informed that he could not be relieved as he was considered to be the “only person who knew anything about street lighting”.
Mr Thornhill’s manager had sent him a pricing document submitted by one of the tenderers who was also the council’s current contractor. When he queried whether he should view the document, he was reassured that it was fine as long as he didn’t share it with anyone outside the panel.
The tribunal was told that Mr Thornhill was sent another pricing document by his manager and on both occasions, the information was used to alter the quantities required on the tender to align with the council’s budget. The contract was subsequently awarded to the existing provider.
A competing contractor challenged the process on the grounds that its rival had been given an advantage. Camden Council sought legal advice and settled the matter out of court. The council then decided to launch an internal investigation that essentially focused on Mr Thornhill having viewed the pricing document. Mr Thornhill cooperated with the investigation but was then signed off on long-term sick leave for depression and post-traumatic stress disorder. He was not asked to attend any further meetings.
The investigation also highlighted that Mr Thornhill had assisted an employee of the existing provider to obtain rugby tickets during the tendering process. A disciplinary hearing took place that centred on Mr Thornhill having knowledge of the commercial information and his failure to report about sharing the pricing information and his communications relating to the rugby tickets. Mr Thornhill was unable to attend because of ill-health.
Dismissed for gross misconduct
The investigation was postponed to consider the impact of Mr Thornhill’s son’s accident on the circumstances. Mr Thornhill was then dismissed on 4 September 2017 with immediate effect for gross misconduct.
The employment tribunal, however, ruled that the investigation that led to Mr Thornhill’s sacking had been flawed. While the reason for the dismissal, his behaviour, was “potentially fair”, the tribunal found that “no reasonable employer would have come to the conclusion that [Mr Thornhill] had acted dishonestly and/or had committed gross misconduct”.
Unable to respond to allegations
The judge also highlighted that at no point during the internal audit was Mr Thornhill informed that he was under investigation for fraud or dishonesty. This meant that he was unable to properly respond to the allegations at the disciplinary hearing.
The tribunal judge noted that Mr Thornhill had not received any formal training in handling tenders and had also asked for himself to be removed from the tender process following his son’s accident. The judge said that these were mitigating factors that affected whether his actions resulted in misconduct.
The judge added: “He was sent pricing by his superior, queried whether he should have received it with his line manager, and was told that as this was not to be shared with others, it was fine.”
HR Lessons learned
This case acts as an important reminder that a robust process and investigation are vital, along with adequately recording meetings and any documentation. An employer must also show that it took full account of evidence that supports the employee.
Since the tribunal, earlier in October 2019, Camden Council said it has conducted a review of its processes and systems and made appropriate changes to its procedures, as well as putting in place new management training.
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