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Cite as: [2008] NIIT 327_7IT, [2008] NIIT 327_07IT

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Anderson v The Bytes Project [2008] NIIT 327_07IT (13 February 2008)

THE INDUSTRIAL TRIBUNALS

CASE REF: 327/07

CLAIMANT: Leah Anderson

RESPONDENT: The Bytes Project

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and her claim to this tribunal is, therefore, dismissed.

Constitution of Tribunal:

Chairman: Mrs Ó Murray

Members: Mrs J Kennedy

Mr P Kearns

APPEARANCES:

The claimant presented her case assisted by her partner Mr Maguire.

The respondent was represented by Mr G Ridgeway, Barrister-at-Law of Employment Law Advisory Services.

THE CLAIM

The claimant's claim was that she was unfairly dismissed. As dismissal was admitted by the respondent the issues for the tribunal were:-

(a) what was the reason for the dismissal;

(b) did it fall within one of the fair reasons outlined in the legislation; and

(c) was that dismissal fair in all the circumstances?

SOURCES OF EVIDENCE

The tribunal heard the evidence of the claimant, her partner Mr Maguire and her former colleague Mr McGuinness. The tribunal also heard the evidence of Ms Clifford, Ms Lappin and Ms Couser for the respondent. The tribunal also considered the documentation produced.

THE FINDINGS OF FACT

The tribunal found the following facts relevant to the issues before it:-

(1) The claimant was employed as a development officer by the respondent and worked there from 1 September 2002 until the 7 December 2006 when she was dismissed. The respondent is a charity which provides access to computer facilities for young people many of whom have been classed as disadvantaged and vulnerable. The charity has 10 sites in Northern Ireland and the events in this case occurred at the New Lodge Bytes Centre.

(2) The claimant's line manager, Ms Clifford, was engaged in work on the office computer system transferring information from one drive to another, when she came across an administration folder bearing the file name "Leah Anderson". She opened it to see if there was anything which required to be saved in the course of the work she was doing and found in that file the two documents relevant to these proceedings. The first document was named "text.rtf" (referred to below as "the text document") and the second document was named "tony.13.10.06.rtf" (referred to below as "the tony document").

(3) The two documents appeared to be records of MSN conversations which the claimant had with her partner Mr Maguire. The text document ran to almost 5 pages and contained content of a sexual nature and the tony document contained personal matters and ran to some 14 pages indicating an MSN conversation over a lengthy period of time. The content of the text document which, at hearing, the claimant denied in its entirety, was agreed by the claimant and her witnesses Mr Maguire and Mr McGuinness as containing content which was inappropriate for the workplace. The tribunal finds as a fact that the text document did contain material inappropriate for the workplace particularly given the fact that there was always a risk that the users comprising young and vulnerable young people could have seen it or accidentally accessed it. The tribunal finds that the first document was created on 14 September 2006 and the second was created on the 13 October which was the date another employee, Ms Bowers, witnessed the claimant online on MSN with her partner talking about a trip to Dublin. It was not contested by the claimant that the date on which Ms Bowers witnessed this was 13 October 2006 and part of the tony document refers to a trip to Dublin.

(4) The administration PC was separate from the users' PCs and whilst all Bytes staff could access it, there was restricted access to it for the users of the centre as they could access it when doing specific work under supervision. The claimant used the administration PC for administration and had her personal account in it.

(5) As a result of the discovery of the two documents and their content, the claimant was suspended on full pay on 16 November pending an investigation. In the suspension letter the claimant was notified of an investigatory meeting to take place on 20 November 2006. The suspension of the claimant was in line with the disciplinary procedures outlined in the respondent's disciplinary procedure at paragraph 8 which allows for precautionary suspension with pay to allow an investigation to take place. In the letter of suspension the claimant was advised of the nature of the matters being investigated. The claimant had received a copy of the "Acceptable Use of Bytes ICT Facilities (Acceptable Use Policy)" document and she was aware of and had access to the "Disciplinary Rules and Procedures for Dismissal" document.

(6) The Acceptable Use Policy document at paragraph 4.3 states -

"4.3 Instant messaging services (IM). Instant messaging services, such as MSN/Yahoo/ICQ Messenger are permitted for occasional use and you are trusted to make reasonable personal use of them as long as this does not:

- interfere with job performance;

- give rise to additional costs;

- interfere with the activities of other users;

- support any work other than that of Bytes;

- breach any rules relating to content."

(7) The Disciplinary Rules and Procedure for Dismissal document lists, amongst others, the following examples under the heading "Gross Misconduct":

"obscene behaviour" and

"any act conduct or omission which the Project considers being in breach of the Project contract or which brings the Project into disrepute".

It is also stated in this part of the document:

"This list is intended only as a guide and is not exhaustive".

(8) An investigatory meeting took place on 20 November 2006 with the claimant Ms Clifford and Ms Lappin, project manager, in attendance. At that meeting the claimant was told in the clearest possible terms (albeit that the term "gross misconduct" was not used) of the potential seriousness of the situation and that the outcome could, ultimately, lead to dismissal.

(9) Over the course of the investigation and disciplinary process, the claimant changed her story in relation to her responsibility for the two documents in that, at the investigatory meeting, she stated that she was not entirely responsible for the documents, the implication being that she was responsible for parts of them. The claimant also did not raise at that meeting the issue of the date and time of the documents having been changed by someone in an effort to "frame" her.

(10) Following the investigatory meeting the claimant was invited to a disciplinary hearing by letter of 23 November 2006. The tribunal finds that there was ample detail in that letter to make clear to the claimant the specific matters of which she was being accused which contravened the disciplinary rules and Acceptable Use Policy.

(11) The disciplinary procedure involved obtaining statements from Ms Clifford; checking who else was in the centre at the times on which the documents were created and taking statements from them. At the time the statements were taken from those individuals they did not know the allegations against the claimant.

(12) The claimant wrote to the project manager on 27 November 2006 asking for more details and clarification of matters and the respondent responded by letter of 28 November 2006. The tribunal finds this letter to be a more than adequate response to the request for information particularly as full documentation had been provided at the investigatory meeting and the claimant was already in possession of the Acceptable Use Policy and the disciplinary policy. Nevertheless the respondent referred her again to those two documents and related the disciplinary offences to the documents.

(13) At the disciplinary hearing on 29 November 2006, the claimant for the first time made a distinction between the two documents namely that the text document which was created on 14 September 2006 was a complete fabrication whereas the tony document created on 13 October 2006 had been tampered with in that some deletions were made and insertions made throughout the document.

(14) The claimant gave evidence that she was so concerned about computer security that she never left the centre even to go to the toilet in the same building without locking the centre or engaging someone to watch over the computers.

(15) The claimant had a current Final written warning on her file which stated that the warning was for an act of major misconduct stating that "you displayed an unsatisfactory attitude to customers and the use of foul language". Additionally it was made clear on the face of the final written warning document dated 14 June 2006 that "any further misconduct within this period on your part may result in further disciplinary action including dismissal".

(16) The claimant was dismissed by letter dated 7 December 2006. Thereafter she received her final pay which included a sum for notice pay.

(17) The letter from Ms Couser confirming the dismissal was erroneously dated

23 November 2006 and the tribunal accepts Ms Couser's explanation that

this was a typographical error and should have read 23 December 2006.

The tribunal therefore does not accept the claimant's apparent assertion that

this letter was prepared before the appeal hearing and thus pre-judged the

appeal hearing.

THE LAW

(1) The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) Order 1996 (referred to as "the Order"). At Article 130 of the Order it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2). One of the potentially fair reasons for dismissal, listed at Article 130(2)(b), relates to the conduct of the employee. If the tribunal finds that the employer has dismissed for a potentially fair reason, the tribunal must then go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4).

(2) The task for the tribunal in a misconduct dismissal is set out as follows by the judge in British Home Stores Ltd v Burchell 1980 ICR 303:

"What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of misconduct in question … 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. 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".

The "Burchell test" has been approved by the Court of Appeal in the cases of Post Office v Foley & HSBC Bank v Madden [2000] IRLR 827. This "range of reasonable responses" test is also applicable to procedural issues as confirmed by the Northern Ireland Court of Appeal in Ulsterbus Ltd v Henderson [1989] IRLR 251.

(3) The employer does not have to prove beyond reasonable doubt that the employee was guilty of the misconduct, but merely that it acted reasonably in treating the misconduct as sufficient for dismissing the employee in the circumstances known to it at the time. The reasonableness of the employer's decision is looked at at the time of the final decision to dismiss namely at the conclusion of any appeal hearing. The tribunal's task, in essence, is not to conduct its own investigation and come to its own view of the offence but rather to assess whether the employer's actions in relation to procedure and penalty fell within the range of reasonable responses which a reasonable employer might have adopted in the circumstances.

(4) The statutory disciplinary and dismissal procedures must also be followed in relation to any dismissal. In summary these provide, insofar as they relate to the circumstances in this case, that an employer contemplating disciplinary action must set out the grounds for the proposed disciplinary action in writing and invite the employee to a meeting. The meeting must take place at a reasonable time on reasonable notice and the outcome of the meeting must be communicated to the employee together with the right of appeal. If the employee appeals there must be a further meeting.

CONCLUSIONS

Applying the law to the facts found the tribunal finds as follows:

(1) The suspension was justified and permissible under the contract given the type of the offence and the potential for tampering with the evidence.

(2) At hearing the claimant essentially put forward to the tribunal a conspiracy theory that an unknown person had fabricated one document and planted it under her name on the administration PC. Further, she alleged that that person had accessed records of an innocuous MSN conversation between the claimant and her boyfriend from her account on the administration PC and then created a new document which deleted some parts of that conversation and inserted other parts into the conversation. That person then changed the dates of creation of the two documents. The tribunal does not believe that an individual falsified the text document managing to adopt the same tone, style and phraseology that the claimant used in the parts of tony document that she does not dispute.

(3) As regards the tony document, the tribunal does not believe that it was doctored as alleged by the claimant. The document flows and there is nowhere where it appears that insertions were made which look out of place in the flow. The document is a lengthy one indicating a lengthy conversation over a long time. There are references to the claimant's friends and the tribunal simply does not believe the insertions were made by another particularly against the background where the claimant changed her story as to her responsibility for the documents. Additionally the claimant did not, at any stage, indicate any member of staff or user of the centre during the investigation or disciplinary process who would have had such animosity towards her that they would go to these lengths to frame her with these documents. During the course of the hearing indeed the claimant appeared to suggest that the young users of the centre were the likely culprits then she changed that to suggest unnamed members of staff and then at the end of her evidence reiterated that it was likely to be the users who were culprits. Given the claimant's evidence of her carefulness in not leaving the PCs unattended, the tribunal finds it hard to imagine circumstances where an individual could go on to the administration PC and whether by memory stick or otherwise, create the allegedly false document or amend the other document, in order to frame the claimant. Given that the documents were saved in her name in her folder on a machine that she used to which there was restricted access, the tribunal finds that it was reasonable for the respondent to take at face value that the two documents were the claimant's documents and that she was responsible for both of them.

(4) The tribunal finds it incredible that the claimant did not raise any suspicions in the course of the investigation and disciplinary process that specific individuals were out to "get" her by framing her with these documents, particularly as it was clear to her from an early stage that she was facing dismissal if the offences were well founded against her. She had nothing to lose in raising her suspicions about individuals and she had everything to gain in the disciplinary and appeal hearing by going into detail of the reasons for her suspicions. At hearing, the tribunal heard no convincing evidence or indeed any consistent allegation from the claimant to support these grave allegations against unnamed individuals.

(5) The claimant's assertion at hearing that the dates and times could be changed on the computer does not prove that they were, in fact, changed. The tribunal finds that it was reasonable for the respondent to take at face value the dates and times on the computer screen which indicate the dates of creation and modification of the documents particularly against the background of the claimant changing her story as to her responsibility to the documents and the fact that the claimant refused to point the finger at anyone at all who would have had such animosity towards her that they would go to these lengths to frame her.

(6) The tribunal does not accept the claimant's contention that she had difficulty communicating the nature of her suspicions about the two documents because the two documents were initially put to her as a whole. The claimant came across as a composed and highly articulate individual at hearing and the tribunal finds that it would have been a simple matter for her to have made a distinction between the two documents if it was her case that one of the documents was a complete fabrication whilst the other one had been doctored.

(7) The tribunal is satisfied that the offences fell within the Acceptable Use document and also fell within the disciplinary rules and procedures for dismissal under gross misconduct.

(8) The claimant essentially appears to have believed that, unless the respondents could positively prove that she had authored the two documents, they could not be used against her in any disciplinary process. The tribunal however, finds that the employer did have enough information to initiate an investigation and, following the investigation, had enough information to charge the claimant with disciplinary offences.

(9) The tribunal does not find it a flaw in the respondent's procedures that the phrase "gross misconduct" was not mentioned specifically in the correspondence. The claimant was clearly aware of the seriousness of the situation. She was also clearly aware of the nature of the offences with which she was faced and their relationship to her contract and the policy documents. The tribunal, therefore, finds that the claimant had enough information and documentation going into the disciplinary meeting.

(10) Following the disciplinary meeting the tribunal finds that the respondent had enough evidence to warrant dismissal of the claimant under her contract on grounds of gross misconduct.

(11) In addition the respondent had the issue of the current final written warning to consider. The tribunal finds that the final written warning was relevant to the penalty imposed in that the final written warning involved a conduct issue. The tribunal finds that the employer could have sacked the claimant without notice for gross misconduct in the absence of the final written warning and further finds that the final written warning added weight to the respondent's decision. The fact that the respondent actually paid notice pay to the claimant (that is that they were more generous than they needed to be) does not, in the tribunal's view, render the dismissal unfair.

(12) The tribunal finds nothing to fault in the appeal hearing which took place on 21 December with Ms Couser.

(13) The tribunal therefore, finds that the claimant was dismissed on grounds of misconduct and further finds that the dismissal was fair. The tribunal finds no fault with the way the investigation and disciplinary and appeal process was carried out and finds that the statutory disciplinary and dismissal procedures were complied with. The way the process was carried out was well within the band of reasonable responses for a reasonable employer and the penalty imposed was well within the band of reasonable responses for a reasonable employer to impose.

(14) The claimants claim is, therefore, dismissed.

Chairman:

Date and place of hearing: 5 December 2007, 21 & 22 January 2008, Belfast.

Date decision recorded in register and issued to parties: