Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/1191_08.html
Cite as: [2009] NIIT 1191_08IT, [2009] NIIT 1191_8IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 01191/08

CLAIMANT: Peter Donnelly

RESPONDENT: Department of Social Development (Child Maintenance and Enforcement Division)

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent.

Constitution of Tribunal:

Chairman: Mr Cross

Panel Members: Mrs Kelly

Mr Lyttle

Appearances:

The claimant was represented by Ms Collins of NIPSA.

The respondent was represented by Mr Wolfe, Barrister-at-Law instructed by the Departmental Solicitor’s Office.

Evidence

The tribunal heard the evidence of the claimant and on behalf of the respondent from Ms Weir, Ms Gallagher, Ms Orr and Ms Scott.

Findings of Fact

The claimant was employed as an Administrative Officer in the Child Maintenance and Enforcement Division office in Antrim. He had been in the Civil Service working in the child maintenance field since 21 March 1985. His employment ended when he was dismissed on 31 May 2008.

The claimant had of recent years suffered from alcoholism and as a result had difficulty in keeping to his work times. He had been disciplined by the respondent for abuse of the time keeping regulations in the flexi-time scheme which was operated by the respondent in its Antrim office. On 29 November 2007 the claimant was issued with a final written warning by Jayne Weir, of the respondent’s personnel branch. This was a second incident of this nature and followed a severe written reprimand given to him on 25 July 2006. The claimant did not appeal these warnings. However, he did speak to Ms Weir about the alcohol problem and told her that he had joined the respondent’s welfare scheme dealing with personal problems. He was at that stage on Stage 2 of the respondent’s improvement programme in relation to abuse of alcohol. The final written warning remained valid for 24 months. The claimant was told, in that warning and at the meeting, that if any further misconduct should occur in that period, then, he would be liable to be dismissed.

In the meantime the claimant had been the subject of what are called “test checks”, in connection with his use of his office computer. Because most of his work was done by computer, the respondent had a safety system in place for checking what information was being accessed by operatives working with the computers in the Antrim office. The first test check was dated 19 February 2007 and showed that the claimant had gone into the records of a Mr Martin McKenna. The claimant stated that he knew Mr McKenna and assisted him by accessing the computer system to find out his National Insurance number. A similar test check was triggered by the claimant on 14 March 2007 when he accessed the computer again for a Una Edwards. The claimant gave a similar response to this check.

On 22 March 2007 the claimant was interviewed by Ms Joanne Hanna who was the line manager of his line manager. This interview arose as a result of the two test checks. Ms Hanna ends her short interview note, recording her discussion with the claimant, by stating, “I informed Peter there would be a full investigation and reminded him of the seriousness of unauthorised access.”

The respondent is very strict in its rules concerning access to records in the system. Personnel are only authorised to access records of people who are subjects of the work of the office. Strict licensing and privacy considerations and the Data Protection Act are the reasons for these strict rules. When a report came through to Mr Glass, the respondent’s financial controller, concerning the two test checks on the claimant’s computer, he asked the respondent’s internal security unit to conduct a full investigation. This showed that the claimant had conducted 35 unauthorised accesses between January and March 2007. Even after he had received the warning of the danger of unauthorised access from Ms Hanna on 22 March, the claimant continued to access the computer for non authorised purposes. The report of the security unit recorded 82 unauthorised accesses to the accounts of 33 people between January and October 2007.

The claimant was interviewed by the investigating officer carrying out the internal security investigation, on 21 January 2008. Although the claimant admitted a number of the access occasions, he was uncertain about 17 of the named customers. He said that he sometimes left his computer on when he was away from his desk and others could have used it, as others in the office knew his password. However the investigators noted that this was a small office and the claimant’s desk could be seen by the managers and it was unlikely that the computer had been accessed by others. The claimant made no further unauthorised access after he heard that an investigation was ongoing on 7 January 2008.

On 18 March 2008, Ms Jayne Weir, the respondent’s discipline officer in the HR Department, issued a letter to the claimant. It stated that the respondent viewed the unauthorised access of the computer system by the claimant as gross misconduct and that she would hold a disciplinary meeting on 11 April. This she did and after a lengthy hearing Ms Weir recommended that the claimant should be dismissed from his post. She stated, that whilst the final written warning had been given to the claimant after the vast majority of the accesses, had occurred, she felt that dismissal was appropriate, as with his seniority he would have known that what he was doing was forbidden and that he should have taken that into account. Not least, as he was under a formal written warning of November 2006 and then the final written warning in November 2007.

Ms Weir was not of sufficient seniority to dismiss the claimant. She had to make her report to Ms Gallagher. Ms Gallagher made her decision after looking at the internal security unit’s report and the recommendation of Ms Weir. Ms Gallagher decided that the claimant’s conduct, in the circumstances of the live final written warning, was such as to warrant dismissal with immediate effect. The claimant appealed the decision to dismiss and the appeal was heard by Ms Andrea Orr the respondent’s Resource Director on 10 July 2008. The claimant appeared at this hearing with Ms Collins his NIPSA representative. The appeal was unsuccessful.

The final appeal open to the claimant was an appeal to the Civil Service Appeal Board, which was heard on 21 November 2008 and again the claimant was in attendance with Ms Collins and again it was unsuccessful.

As mentioned above the claimant was receiving help, from the respondent’s personnel branch, with his alcohol abuse problem. The tribunal was furnished with a copy of the Civil Service circular 7/03 which sets out the current guidelines for dealing with this problem. The tribunal heard the evidence of Ms Weir, Ms Gallagher and Ms Orr, as to their knowledge of this problem in relation to the claimant. They were all aware that the claimant was in the habit of going into a certain public house in Antrim during his lunch time. It was in this pub that the claimant met people who prevailed upon him to access the computer system to obtain the pieces of information which they required. There was no suggestion that the claimant was benefiting financially in this breach of the respondent’s rules.

The circular 7/03 gave advice in Annex B, to managers, who were faced with dealing with members of staff with drink problems. Most of the advice given in the circular dealt with day to day issues in dealing with such employees. However there were some points to be observed by managers dealing with disciplinary matters. For instance paragraph 22 states, “It will not usually be appropriate to take severe disciplinary action, particularly for a first offence”. It goes on to advise that the welfare officer should be alerted. In this case the welfare officer had been involved with the claimant from 2006 and the claimant referred to the officer’s assistance in his written statement, in answer to the charge of abusing the flexible working arrangements in July 2006.

The tribunal only became aware of the circular 7/03 during the course of the closing submissions in the case. The tribunal felt that the circular was a document that might have an important bearing on the case and therefore asked the respondent and the claimant to give evidence concerning it. The claimant gave frank evidence of his problem with alcoholism and the respondent’s three witnesses, who had handled the disciplinary and appeal process, were recalled and dealt with the impact of the circular on their conduct of the disciplinary process. Ms Scott gave evidence as to how the Welfare Department helped employees with personal problems.

The claimant was working under a contract of employment, which, in its disciplinary section set out examples of behaviour that might lead to dismissal for gross misconduct. Amongst these examples is “any wrongful or unauthorised access to IT systems or other breach of IT security.”

The Law

Article 130 of the Employment Rights (Northern Ireland) Order 1996, (hereinafter “the Order”), states that in determining whether an employee is fairly or unfairly dismissed, it is for the employer to show to a tribunal the reason for the dismissal and to prove on the balance of probabilities that the reason falls within a group of reasons that would justify the dismissal of the employee. One of these listed reasons, that can justify dismissal, is the conduct of the employee. Once the employer has proved that the reason for the dismissal falls within this heading of conduct, the tribunal must determine the question of whether the dismissal is fair or unfair, by deciding whether “the employer acted reasonably or unreasonably, in treating it as a sufficient reason for dismissing the employee”, (Article 130 (4) (a)). Article 130(4) (b) of the Order states that this question of reasonableness “shall be determined in accordance with equity and the substantial merits of the case.”

The tribunal must not, in considering the fairness or otherwise of the respondent’s conduct, substitute the respondent’s view of how the disciplinary process should be handled, with its own view. There is a string of decisions, mostly from England, which lay down this principal. The most important of them is possibly the decision in Iceland Frozen Foods v Jones [1982] IRLR 439, which stated, that a tribunal in deciding whether the dismissal is fair under Article 130(4) must consider the reasonableness of the respondent’s conduct. In judging the reasonableness of that conduct the tribunal must not substitute its own decision, as to what was the right course for the respondent to adopt, for that of the respondent.

The most recent decision on this point is that of the English Court of Appeal in London Ambulance Service NHS Trust v Small [2009] EWCA Civ 220. In which the Court held that the tribunal should have confined its considerations of the facts, to the facts relating to the Trust’s handling of the dismissal and not made its own findings as to matters which were in dispute in the internal proceedings.

The Iceland Frozen Foods judgment then states that the tribunal must then decide whether the decision of the employer to dismiss an employee, falls within a band of reasonable responses, which a reasonable employer might make if faced with such a disciplinary matter. The band of responses may stretch from dismissal to a final written warning and a tribunal may be equally justified in deciding that either is appropriate to the case being heard.

The claimant in this case was working under a contract of employment which gave the respondent a right to dismiss in respect of an employee’s gross misconduct.

Decision

19 The tribunal spent a considerable time in looking at the circular 7/03 referred to above, which dealt with the handling of employees suffering from problems with alcohol. If it had not been for this aspect of the case, the tribunal would have had less difficulty in reaching its decision. The claimant was, at the time of the offence concerning the unauthorised access to the computer details of people who were not clients, still under the effect of a final written warning. The warning was specific in stating that any further disciplinary matter that was laid against him and upheld could result in his dismissal. It would therefore be difficult for the tribunal to say that dismissal in those circumstances was not within the band of reasonable responses of a fair employer looking at all the factors.

20 The tribunal considered that the circular had however been taken into account by the respondent’s officers in their dealings with the claimant. Ms Weir gave evidence of her knowledge of the claimant’s referral to the Welfare Department. She did however consider referral and the discussions that the claimant had with Ms Scott of the Department as confidential to him. He did not choose to raise the matter in connection with the final disciplinary matter of the unauthorised accesses, Ms Weir felt that the circular and the advice therein was chiefly for the line managers and did not greatly impinge on disciplinary matters of the type involved in this case. The tribunal agree with this reading of the circular. The claimant in answering Ms Weir’s questions, at her investigation of the matter, stated that he wanted to bring his drinking to her attention but not with the intention of excusing the accesses.

21 Ms Gallagher was if anything stronger on the alcohol aspect of the case. She stated that she reached her decision to dismiss on the evidence provided by Ms Weir and that it would have been for the claimant to have raised the problem and his treatment by the Welfare Department, if he wanted to rely on it as an excuse for his conduct. Her view of the matter was that problems of this kind were confidential to the employee and the welfare officer concerned and could only be the subject of discussion in a disciplinary forum if the employee raised the matter first and authorised the welfare officer to disclose information to the officer dealing with the disciplinary process.

22 The internal appeal was heard by Ms Orr, who mentioned the addiction problem in the context of the earlier flexi-time final warning and the fact that that warning was not appealed. The argument put to her was, that if this final warning had been appealed and overturned, then the present misconduct of the access to the computer system would not have led to a dismissal. The alcohol problem was not an excuse for the appeal before her and she felt that the argument of the failure to appeal was too remote to be relevant to the appeal before her. She was however aware of the policy and the fact that the claimant had undergone treatment with the Welfare Department.

23 The tribunal, in reaching its decision, took into account the seriousness with which the respondent viewed the misuse of the computer system. The offence was listed as gross misconduct in the disciplinary code and the respondent had set up the test check system to detect breaches of the computer rules. Team time sessions with the staff were used to reinforce the seriousness of the matter. Finally the claimant had been warned by Joanne Hanna on 22 March 2007 as to his breach of this rule yet he continued to access the computer for non work reasons.

24 The tribunal also considered the fact that the claimant had a very long record of service with the respondent and its predecessors. However the offence was of such a serious nature that the claimant’s seniority should have been of assistance in preventing him from breaking the rules on so many occasions, especially after he had received a specific warning from a superior officer.

25 Taking account of all these facts and the legal principals set out above, the tribunal hold that the respondent had satisfied the test laid down in Iceland Frozen Foods. The decision to dismiss did fall within the band of reasonable responses that an employer might adopt, if faced with an employee’s conduct of this type. The dismissal of the claimant is therefore fair and his claim is dismissed.

Chairman:

Date and place of hearing: 2-6 March 2009 and 13 March 2009, Belfast.

Date decision recorded in register and issued to parties:

01191-08IT 7