Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/935_08.html
Cite as: [2009] NIIT 935_08IT, [2009] NIIT 935_8IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 935/08

CLAIMANT: John McGrady

RESPONDENT: The Welcome Organisation

DECISION

The unanimous decision of the tribunal is that the claimant’s claim of unfair dismissal is dismissed.

Constitution of Tribunal:

Chairman: Mr Wimpress

Members: Mr Irwin

Mr Edmont

Appearances:

The claimant was represented by Mr Cox, Barrister-at-Law, at law instructed by MSM Solicitors.

The respondent was represented by Mr McKee, Barrister-at-Law, instructed by O’Reilly Stewart, Solicitors.

The claimant’s claim arises from his dismissal from his employment as an outreach

worker with the respondent.

Sources of evidence

2. The tribunal heard oral evidence from Mrs Sandra Moore, Mr Ciaran Sheehan, Mr Donaghy, Mrs Paula Coogan and the claimant. The tribunal also received an agreed bundle of documents.

The claim and the response

3. The claimant filed a claim form on 30 June 2008 alleging that he had been unfairly dismissed by the respondent on 31 March 2008. The claimant complained that the sanction of summary dismissal imposed on him in respect of an offence of gross misconduct was disproportionate, that the respondent failed to consider other forms of punishment and that the respondent should have taken into account a number of mitigating factors as well as his good work history. The response filed by the respondent confirmed that the claimant had been dismissed for misconduct and set out the respondent’s case in respect of the process which lead to his dismissal in commendable detail. In summary, the respondent’s case was the claimant was dismissed on the basis of serious allegations of computer misuse and disobedience of an instruction by his line manager to keep off the computer. The respondent contended that the decision to summarily dismiss the claimant was only taken after a thorough investigation and a full and fair disciplinary process which included an appeal to a senior manager. In these circumstances the respondent believed that the summary dismissal of the claimant was fair and reasonable.

The issues

4. There was no dispute that the claimant was dismissed by the respondent and the parties agreed that the dismissal was for a potentially fair reason, namely the claimant’s conduct. Accordingly the sole issue for the tribunal was:-

“Whether the decision to summarily dismiss the claimant was fair and reasonable.”

The facts

The respondent is a registered charity which is funded by the Northern Ireland Housing Executive. Its purpose is to provide care for the most vulnerable in society such as those who are homeless and live on the streets. It is a small organisation run by a voluntary board comprised of five members from a variety of backgrounds with twelve staff in total comprising administrative staff and six full-time workers. At the material time Mrs Moore was the Director for Homelessness Services and Mr Joseph McGuigan, the Outreach Manager, reported directly to Mrs Moore. Mrs Lillian Cairns was employed as the Drop-In Centre Manager, and her husband, Mr Roy Cairns, was a paid Outreach Worker. The organisation had of late suffered from problems with staff and both Mr McGuigan and Mr Cairns have since been dismissed for offences involving fraud.

The claimant was employed as a Street Outreach Worker at the respondent’s premises at 65 St. Peter’s Square North, Belfast. The claimant initially worked for the respondent in a voluntary capacity and took up paid employment on 1 April 2007. It is material to note that the claimant’s job application form contained a misleading statement to the effect that he was educated to GCSE standard whereas the true position was that he left school without any formal qualifications and according to the claimant he was illiterate. No formal evidence was adduced in support of this claim but having heard the claimant give evidence we are satisfied that he certainly has limited reading and writing skills. This did not however prevent the claimant from signing a contact of employment with the respondent. The claimant was provided with a copy of his contract together with a copy of the respondent’s code of conduct. The latter document contained important provisions in relation to the duty of confidentiality owed by employees to the respondent and in particular at Paragraph 9.3 it is stated that any deliberate or persistent accidental breaches of confidentiality will be treated as a serious matter and may lead to disciplinary action. Attention was also drawn at Paragraph 9.1 to the different types of sensitive information held by the respondent and to how breaches may occur. This topic was also covered extensively in the Employee Handbook received by the claimant. In addition the claimant received induction training from Mrs Moore which laid particular emphasis on the importance of confidentiality at all times. In these circumstances we are entirely satisfied that irrespective of the claimant’s literacy or otherwise, he could have been in no doubt as to the importance that the respondent attached to confidentiality.

The events giving rise to the claimant’s dismissal arose from the decision of the respondent to purchase new computers for its administrative staff and to transfer two old computers from its premises at Mill House, Northumberland Street, Belfast, to the Outreach Centre where the claimant was based. One of the old computers was the personal computer used by Mrs Sandra Moore in her office in Mill House. Mrs Moore was under the impression that the computer’s hard drive had been wiped prior to the transfer. Regrettably this was not the case and the chain of events that followed resulted in the claimant’s dismissal. Mrs Moore also surprisingly neglected to protect the information contained in the computer by the use of a password.

The two computers, including Mrs Moore’s computer, were brought to the Outreach Centre by the claimant and a fellow worker, Mr Michael Devlin, on the morning of 18 February 2008. It was unpacked by the claimant and Mr Michael Devlin. According to the claimant he asked the administration assistant, Mrs Tina Mullan, whether someone was coming into assemble or if it was a DIY job and she replied that it was a DIY job. The claimant then proceeded to assemble the computer with Mr Devlin and switched it on. It was the respondent’s case that no-one directed either the claimant or Mr Devlin to assemble or switch on the computer. The computer at this point was accessible to anyone as it was not protected by a password. It is clear from a computer log that was produced in evidence that the computer was operated for a period of time in the morning and for a further period during the evening.

After the computer had been set up the claimant, who in his own words was skiving, played solitaire on the computer. According to the claimant files kept popping up and he recognised at least one document which contained the name of the chairman of the organisation, Mr Donaghy. At one point during the afternoon Mr Joseph McGuigan, the claimant’s line manager, found him at the computer and observed that a document relating to the respondent’s Code of Conduct was open. Mr McGuigan asked the claimant who had authorised the assembly and setting up of the computers and he replied that Mrs Mullan had told him that it was a DIY job. Mr McGuigan told the claimant to get back to work and to stay off the computer. Mr McGuigan left the centre at approximately 5.15 pm and returned later that evening at approximately 9.40 pm where he was approached by the claimant who told him that “there was a whole load of stuff on the computer”. Mr McGuigan was annoyed that the claimant had ignored his instruction and gone back on the computer and asked him why he had done so. The claimant responded, “you want to see what is on that computer”. Mr McGuigan was also informed by another member of staff that the claimant had made a similar remark to colleague. Mr McGuigan instructed the claimant to shut down the computer and give him the power leads to prevent further access.

The following morning, Mr McGuigan reported the matter to Mrs Moore. Mr McGuigan told her about the computer being operated and that it contained her files. She immediately took action to impound the computer and reported the matter to the Board who directed her to investigate what had occurred. In the normal course of events, Mr McGuigan, as the claimant’s line manager, would have been asked to undertake the investigation but he was also under investigation at this time and as a result there was no-one available at managerial level to undertake the investigation other than Mrs Moore.

Mrs Moore carried out a series of interviews of relevant witnesses.

Mr McGuigan’s account

12. Mrs Moore first interview was with Mr McGuigan on 21 February 2008 and he gave his account of the events in question. This account included the fact that Mrs Coogan had reported that the claimant was on the computer between 4.00 and 5.00 pm on 19 February 2008 and that Mr McGuigan went immediately to the office where he saw what may have been icons at the side of the screen and the Code of Conduct document open. According to Mr McGuigan’s both the claimant and Mr Devlin were in the office. The claimant was sitting beside the computer and Mr Devlin was sitting ‘to the offside’ and did not appear to be viewing the screen. Mr McGuigan’s said his reaction was that the claimant should have been on an outreach and that he was unmistakably angry. He told the claimant to get the PC closed down immediately and get on with his work or words to that effect. Mr McGuigan who was aware that someone was coming down to set up the computers asked the claimant who had authorised him to do it and the claimant replied that he had asked Tina McMullan if someone was coming down to set them up or was it a DIY job and she replied that it was a DIY job. Mr McGuigan went home at around 5.15 pm but returned to the centre at around 9.40 pm to go on an outreach. When he arrived at the centre the claimant was waiting for him and told him that there was a ‘whole lot of stuff on the computer’. Mr McGuigan responded by asking the claimant what he was doing back on the computer. Mr McGuigan was very angry. The claimant responded, “You want to see what is on that computer” to which Mr McGuigan replied that he didn’t want to know. Mr McGuigan took the leads from the computer so that it could not be re-connected. He did not know whether the claimant had shared the material on the computer with any other member of staff but was ninety five percent sure that nothing had been copied. When Mr McGuigan arrived at the centre on the next morning the claimant was waiting for him and asked him what he was going to do about all of this and may also have asked whether he was in trouble. Mr McGuigan responded that he was taking the computer to Sandra (Mrs Moore). Mr McGuigan then spoke to Mrs Lillian Cairns and advised her that he was returning the computer to Mrs Moore and that the claimant had totally disobeyed him. Mrs Cairns responded that it was not their fault and that the PC should not have gone down like that. Mr McGuigan expressed his opinion of the incident to Mrs Moore which was that there was a serious breach of conduct and a case to answer in that the claimant had disobeyed a direct instruction from his line manager and may have breached confidentiality.

The claimant’s account

13. The claimant was invited to attend for interview by Mr McGuigan on 21 February 2008. There was some discussion about dates and representation but ultimately the claimant agreed to attend at 4.30 pm on the same day at Mill House. He was interviewed by Mrs Moore and Mr McGuigan. The claimant maintained that he was told by Tina McMullan that it was a DIY job and indicated that he thought that he was doing the centre a service. The claimant was asked if anyone else was involved. The claimant appeared reluctant to answer and did not want to say whether Mr Devlin had contributed to setting up the computer or accessing files. Mrs Moore and Mr McGuigan encouraged the claimant to be frank and not to try and cover anything up. The claimant responded that he could not remember what role, if any, Mr Devlin played. The claimant advised that he had set the computer up between 3.00 pm and 4.00 pm and when asked why he did not ask or discuss setting up the computer with Mr McGuigan, he replied that he did not think he needed to anymore than when he set up a Wii or DVD player and that he assumed that it was to be set up. The claimant indicated that he was looking for games when Mr McGuigan entered the office and that he discovered files later that evening. The claimant was asked why he went back on the computer after a clear instruction by his line manager to get off it and responded that Mr McGuigan had not specifically said that he was not to go back near it and that he did not see it as a specific instruction that staff were not to use the computer. When asked if Mr McGuigan had appeared angry, the claimant said that he interpreted it more as a case of telling him to get back to work. The claimant said that he went back on the computer at about 8.30 pm and discovered office files on it and that there were, “files and documents popping up everywhere”. The claimant claimed that he did not know what they were and that they could have been Microsoft Office or Norton Virus for all he knew. The claimant said that he did not read any documents and that he may have told Mr Devlin that there were office files on the computer. He then switched the computer off and unplugged it. The claimant denied telling anyone else that there were office files on the computer and categorically denied saying to other staff members, “You ought to see what is on that computer”. Mrs Moore advised the claimant that he should be open as a report was going to be run on the hard drive which would reveal what files and documents were opened and viewed. The claimant was adamant that he did not know how to open documents and that he was clicking on different buttons looking for a way to type. When pressed, the claimant agreed that he thought that there was a document open that was something to do with the Code of Conduct. He also saw something about rotas and recalled something from Eamonn Donaghy popping up. The claimant stated that he did not know whether Mr Devlin looked at any of the documents. The claimant maintained that he had done nothing wrong and that this would not have been an issue had the computer not had documentation on it. The claimant denied copying anything from the computer and said that someone else could have accessed the computer when he was on an outreach or out for a smoke.

Mrs Coogan’s account

14. Mrs Coogan was interviewed by Mrs Moore and Mr Tommy Shaw on 22 February 2008. Mrs Coogan told them that she observed the claimant playing solitaire on the computer on the afternoon of 19 February. She advised Mr McGuigan of this who then went to the office and told the claimant to close the computer down. Mrs Coogan said that Mr McGuigan was very angry and that the instruction was very clear and explicit. Mrs Coogan added that it was not the claimant’s job to be on the computer and that it was unlikely that he would be using it very much as an outreach worker. Mrs Coogan did not see any files open but heard the claimant say to Mr Devlin, “you ought to see what is on here”. Mrs Coogan later advised the claimant to “put his hands up and tell truthfully what he had done” as the PC would tell what had been accessed and when.

Mr Devlin’s account

15. Mr Devlin was interviewed by Mrs Moore and Mr Shaw on 25 February 2008. Mr Devlin stated that when they brought the computer to the centre the claimant started assembling it straightaway. Mr Devlin recalled the claimant being in the office a lot that day possibly playing games. He remembered Mr McGuigan coming in before 5.00 pm and telling the claimant to get off the computer. Mr Devlin said that Mr McGuigan was obviously ‘pissed off’ at the claimant being on the computer and there was no mistaking the message. According to Mr Devlin at about 8.00 pm when he was doing the outreach reports the claimant was on the computer and IT advised Mr Devlin that there were documents on it. Mr Devlin recalled the claimant telling him something about a letter from S Moore to Margaret Leonard about misuse of funds and something about volunteer expenses. Mr Devlin said that he was sitting at the side of the computer and although he could see that documents were open he could only see three files that were open, some sort of spreadsheet on volunteers expenses, a staff rota and a letter to S Moore. According to Mr Devlin the claimant kept telling him to look at these but Mr Devlin was doing his outreach sheets and did not want to know although he could not help but see them. Mr Devlin expressed the opinion that the claimant was looking for something and had pointed out a reference to an S Darling. Mr Devlin stressed that he was telling the truth and that he was not prepared to tell lies to protect anybody. In response to the suggestion that things may have popped up on the computer, Mr Devlin disagreed and said that the claimant was searching for something and that the claimant knew his way around a computer as he had one at home. Finally, Mr Devlin stated that nothing was copied as there was no printer or anything to copy with.

Further interviews

16. Mrs Moore conducted two further brief interviews with Mr McGuigan and Mrs Coogan on 28 February 2008 about the positioning of the computer and the people in the office. Mrs Coogan stated clearly that she saw the claimant at the computer.

Mrs Moore’s conclusions

Having carried out her investigation, Mrs Moore carefully reviewed the evidence and prepared an outline of the findings of the investigation. In the overview section Mrs Moore commented that it would have been obvious that the computer in question was hers as the screensaver was a photograph of the village in which she lived and that this had been the subject of a discussion during the previous week involving the claimant. Mrs Moore was satisfied that the claimant should face disciplinary charges in respect of accessing confidential documents on the computer and failing to obey Mr McGuigan’s instruction. Thereafter Mrs Moore reported her findings to the Board.

The disciplinary process

18. On 19 March 2008, Mr Donaghy wrote to the claimant and advised him that as Acting Chairman he was invoking the organisation’s disciplinary procedure in respect of allegations that the claimant carried out unauthorised access to the respondent’s computer files and failed to comply with a direct instruction from his line manager. The letter also informed the claimant that he was being suspended on full pay pending further investigation and that during the period of suspension he would not be entitled to access to any of the respondent’s premises without prior consent. On 20 March 2008, Mr Donaghy sent a further letter to the claimant which rehearsed the allegations again and informed the claimant that the allegations, if proven, constituted gross misconduct and could result in his dismissal. The claimant was invited to attend a disciplinary hearing on 27 March 2008. The claimant was also advised that he was entitled to be accompanied by a representative or work-based colleague. At the claimant’s request the hearing was put back to 29 March 2008. On 26 March 2008, Mr Donaghy sent the claimant copies of the documentation that was to be submitted to the disciplinary panel which included witness statements. On 28 March 2008 the claimant wrote to Mr Donaghy and advised that a trade union representative had been appointed and posed a number of questions dealing with matters such as induction training and included the following statement at Paragraph 6:-

“My understanding that these spurious allegations have come about as a result of verbal/written statements of other members of the Welcome Organisation to which I have not been privy under the guise of your somewhat legally dubious ‘whistleblower’ policy. Accordingly I am making this formal request for copies of those original signed statements/allegations under the rights afforded to me according to the Data Protection Act 1998.”

On 28 March 2008, Mr Donaghy responded by letter. Mr Donaghy sought details as to the identity of the trade union representative, addressed the claimant’s query about induction training, drew attention to the relevant provisions in the Code of Conduct, dealt with a point raised by the claimant about unauthorised access to computer material and provided further copies of the witness statements.

The disciplinary hearing

19. The claimant duly attended the disciplinary hearing on 29 March 2009. The disciplinary panel comprised of Mr Ciaran Sheehan and Mrs Margaret Leonard. The claimant’s trade union representative was unable to attend because he was hospitalised and the claimant agreed to proceed without representation. The claimant was provided with signed copies of the witness statements together with his own statement. The claimant stated that his statement was not signed or accepted by him. During the course of the hearing the claimant was given a full opportunity to outline the events that gave rise to the disciplinary proceedings from his perspective. The claimant made the case that he accidentally opened the computer files and that although he accepted that Mr McGuigan told him to come off the computer he did not take this as an instruction. Mr Sheehan read through a log which gave the times that confidential files were opened which matched the times when the claimant was using the computer. The claimant responded that the files just popped up and that he did not go looking for them. Mr Sheehan also asked the claimant why he did not close a confidential file when it appeared or switch the computer off rather than opening more files in the same folder and the claimant again responded that he did not know what he was clicking on and they just popped up. The claimant also opined that the documents should have been on “restricted access” under data protection legislation. The claimant went on to suggest that a full investigation had not been undertaken as other witnesses had not been interviewed. In this regard the claimant stated that he was not the only person using the computer and a new witness had come forward the previous evening in a “confidential phone call”. The claimant did not however seek to call this witness or ask for the hearing to be adjourned so that the panel would have the benefit of this evidence. The claimant also claimed there was a conflict of interest in that the computer had come from Mrs Moore’s office and that she should not have carried out the investigation. However, the claimant accepted that he accessed the computer on two occasions but maintained that the office files were opened accidentally by him. The claimant also offered by way of defence that he was a loyal employee but that he suffered from depression and dyslexia. The panel noted that the claimant did not dispute the allegation that he had accessed the computer on two occasions but did not accept the claimant’s explanation that the files popped up accidentally. The panel found that there was a deliberate pattern in opening and accessing a series of files at times when the claimant accepted that he was using the computer and which at first glance he would have known to be confidential. The panel considered the claimant’s allegation that someone else was also using the computer and while accepting that this might also have been the case noted that the claimant had accepted that he was using the computer when confidential files were accessed. The panel did not accept that the claimant was unfamiliar with computers and files. The panel was further satisfied that the claimant had disobeyed an instruction by his line manager to come off the computer. In these circumstances the panel recommended that the claimant should be summarily dismissal. The Board accepted the panel’s recommendation and by letter dated 31 March 2008, Mr Donaghy, having rehearsed the panel’s findings, informed the claimant that he was being summarily dismissed with immediate effect on the grounds of gross industrial misconduct. Mr Donaghy also advised the claimant of his right of appeal.

The disciplinary appeal

20. The claimant sought to appeal against his dismissal by letter dated 3 April 2008. In this letter the claimant set out ten points on which his appeal was based as follows:-

(1) The investigation was not independent and was not fully investigated.

(2) The claimant’s statement was not a true reflection of the interview.

(3) Contradictions in witness statements.

(4) Accessing files on the computer was accidental.

(5) The claimant was not the only person on the computer.

(6) Mr Devlin had falsified outreach records for the day on which the computer was accessed which contradicted his statement and discredited his views.

(7) Having come across files accidentally on the first occasion, the claimant was unaware of their importance and when he became aware of their importance on the second occasion, he made it his business to stay behind and report this information to his line manager.

(8) The claimant was not given significant time to arrange representation.

(9) Unfair dismissal.

(10) A new witness had come to light.

21. Mr Donaghy replied by letter dated 21 April 2008 advising that he would hear the appeal on 25 April 2008 at 12.30 pm and that the claimant was entitled to be accompanied by a work colleague or a recognised trade union official. The claimant did not attend the disciplinary appeal and Mr Donaghy decided to proceed in his absence on the basis of the material contained in the appeal papers. Having given careful consideration to the appeal, Mr Donaghy upheld the disciplinary panel’s decision and treated the appeal as withdrawn. This was communicated to the claimant by letter dated 28 April 2008. It subsequently transpired that the reason for the claimant’s non-attendance was that he had not received the letter inviting him to the appeal. In these circumstances, Mr Donaghy, quite properly, set aside the appeal decision and organised a fresh hearing.

22. The fresh appeal hearing took place on 6 May 2008 and was again heard by Mr Donaghy. The claimant attended with his representative, Mr O’Toole, and was given a full opportunity to challenge the evidence against him which he did with some vigour. At an early stage of the proceedings the claimant handed in two letters dated 6 May 2008 addressed to the respondent from Mrs Lillian Cairns and Mr Roy Cairns respectively. Mrs Cairns worked as a manager at the Outreach Centre and Mr Cairns was a former employee. The main thrust of Mrs Cairns’ letter was that no direction had been given that staff would be unable to access the computers, that she had not been informed that a technician had been engaged to assemble the computers, that she was not made aware that the computer contained sensitive information and that she was not advised to give specific permission to staff to operate the computer. The focus of Mr Cairns’ letter was on Mr Devlin’s role in the affair. Mr Cairns stated that he recalled Mr Devlin operating the computer alone during the evening of 18 February 2008 and later on when he returned to the office, Mr Devlin was standing behind the claimant who was sitting at the computer telling him to ‘click on this and click on that’ and Mr Cairns was very extremely alarmed that Mr Devlin was reading confidential information about his wife. He also heard information about Mr McGuigan and heard Mr Devlin refer to a document that mentioned Mrs Moore and Mrs Leonard. Mr Cairns contacted his wife about this and she advised him to tell the claimant to turn the computer off. Mr Cairns stated that he did so and told the claimant that he would apprise Mr McGuigan of the situation when he arrived. According to Mr Cairns, he called Mr McGuigan into the kitchen and informed him that Mr Devlin, the claimant and Mr Cairns himself were privy to extremely sensitive information about Mr McGuigan and Mrs Cairns amongst others. Mr Cairns went on to say that he was not asked to provide a witness statement and that he had contacted Mr McGuigan on 30 March 2008 to ask if Mr McGuigan had informed Mrs Moore that it was Mr Cairns who had initially told Mr McGuigan about the computer. Mr McGuigan advised that he had done so but could not ascertain why Mr Cairns had not been called as a witness but would re-inform Mrs Moore for the purpose of clarity. Mr Donaghy accepted the letters and indicated that he would read and consider anything of relevance within them. The claimant gave his account of the matter to Mr Donaghy. The claimant maintained that files popped up when he was playing computer games. When pressed on this point the claimant conceded that he fiddled with things down the side of the computer screen. Mr Donaghy drew the claimant’s attention to the computer audit trail which showed that programmes were opened at 7.00 pm. The claimant denied being on the computer at that time and claimed that Mr Devlin was on the computer then. The discussion then moved on to the failure to obey Mr McGuigan’s instruction to get off the computer. The claimant responded that he did come off the computer and that Mr McGuigan’s primary interest was that the claimant was not working. Both the claimant and his representative also made the point that that it was the claimant who stayed behind and informed Mr McGuigan about the confidential information on the computer. The claimant denied saying, "You ought to see what is on this” or accessing the programmes which showed up on the computer audit trail. Mr Donaghy put it to the claimant that if it he had not accessed the computer it must have been Mr Devlin. The claimant responded positively to this suggestion and elaborated that when Mr McGuigan asked Mr Devlin who had seen this information on the computer, Mr Devlin had said something about a job three months down the line. The claimant went on to state that when he closed the solitaire game there were pages behind it including a letter with Mr Donaghy’s name on it. When asked if he had read anything on the programme, the claimant replied that he felt embarrassed as he could not read properly and he had problems with literacy. Mr Donaghy then referred to Mrs Cairns’ letter and asked the claimant if he had passed information on to her which he denied. Mr Donaghy commented that he would look at the letters but was surprised to have them presented three and a half months after the events in question. The claimant again made his point about not all of the staff on duty being interviewed. Mr Donaghy then sought to clarify the claimant’s case. The claimant agreed with Mr Donaghy’s summary of his case which was that when he came in at 7.19 pm to play games, Mr Devlin was sitting at the computer with documents opened by him. Mr Donaghy drew attention to Mr Devlin’s statement which made no reference to him being on the computer. Mr Donaghy went on to question the claimant about why he stayed behind to speak to Mr McGuigan and the claimant responded that he thought that it was his job to tell Mr McGuigan about the information on the computer. When asked why he thought he was in trouble, the claimant replied that it was due to Mr McGuigan’s reaction and specifically when he said “who the f--- saw this?” Mr Donaghy again suggested that the claimant had read some of the information which he denied. The claimant also denied passing on any information to Mrs Cairns and when pressed said that it must have been Mr Devlin. There then followed some discussion about the timings of the access to the computer and whether these corresponded with outreach reports. The claimant complained that Mrs Moore had not investigated the reports until the day before the hearing. Mr Donaghy asked the claimant why he had not told Mrs Moore that Mr Devlin was responsible and he replied that he did not want to ‘tout’ on him. The claimant then attempted to make a point about Mr McGuigan’s failure to secure the computer when the confidential information was drawn to his attention but Mr Donaghy did not regard this as pertinent to the appeal. The claimant finally drew attention to the fact that he had been a dedicated worker for several years and nearly one year as a paid worker. Mr Donaghy responded that he could only focus on matters relevant to the appeal. We were concerned that this might betoken a misunderstanding on Mr Donaghy’s part as to the need for him to consider alternative penalties to dismissal but Mr Donaghy was firm in his evidence that he had considered all options including lesser penalties but believed that the seriousness of the offence warranted summary dismissal.

Mr Donaghy did not give his decision immediately but wrote to the claimant some days later on 12 May 2008 and advised that he had upheld the decision of the disciplinary panel. In a detailed four page letter, Mr Donaghy addressed all of the relevant matters raised at the appeal hearing. Dealing, firstly, with the claimant’s failure to obey Mr McGuigan’s instruction to come off the computer, Mr Donaghy stated that he had reviewed the statements relating to Mr McGuigan’s reaction and believed that the claimant had failed to act on a clear work instruction from his line manager. In relation to the second charge, Mr Donaghy drew attention to inconsistencies in the statement made by the claimant as to the setting up and starting up of the computer. Nor did Mr Donaghy accept that the claimant had limited computer skills as he was able to set up the computer and the records indicated that the full range of files had been accessed. Mr Donaghy did not accept that files just popped up and placed reliance on the computer records which showed a consistent and deliberate attempt to access specific files which by their nature he would have known should not have been accessed. Mr Donaghy also placed emphasis on the claimant’s admission that he accessed the computer at various times between 1.00 pm and 8.00 pm, opened some files, albeit accidentally according to the claimant and that he was ‘skiving’ while he was meant to be on outreach duty. Mr Donaghy listed the files that had been accessed during this period which included documents entitled ‘Application for Board membership’ and ‘Management of Cash and Banking’. Mr Donaghy noted that the claimant had now indicated that Mr Devlin had access to the computer in the evening between 6.30 and 8.00 pm but accepted that he was on the computer after his return to the centre at 7.19 pm. Mr Donaghy pointed out that a significant number of files was accessed after this time which we note from the examples given in the decision included volunteers’ payments analysis and various pieces of correspondence. Mr Donaghy continued by drawing attention to the claimant’s failure to turn off the computer when he realised that there was confidential material on it and returned to it in the evening when further files were accessed. While there was some support for the claimant’s contentions in two letters received from Mr and Mrs Cairns, Mr Donaghy was sceptical about the veracity of statements received so late in the day. Mr Cairns had been at the Outreach Centre on the day in question and in his statement claimed to have observed Mr Devlin taking a leading role and directing the claimant to access certain files. Mr Donaghy did not set much store by Mr Cairns’ evidence as Mr Cairns was no longer employed by the respondent having been dismissed for fraud and in these circumstances Mr Donaghy unsurprisingly did not consider him to be a truthful witness. Based on all of the evidence before him, Mr Donaghy concluded that the claimant had deliberately and systematically accessed a range of computer files.

Three other matters emerged during the tribunal hearing which were suggested to be of relevance to the claimant’s credibility. Firstly, the tribunal was provided with the claimant’s job application form for the outreach post which included a blatantly false and misleading statement that he was educated to GCSE level whereas the

true position was that he left school without any qualifications. The claimant’s explanation for this was that Mr McGuigan advised him as to what to say in the form and how to put it. Secondly, the tribunal heard evidence that after his dismissal the claimant was seen working in a mobile coffee shop in Belfast and received a training certificate from an organisation in Leeds to where he travelled with the proprietor. The claimant’s explanation was he was not actually working and he was merely socialising. Thirdly, our attention was drawn to a statement made by Mr Donaghy in a grievance appeal brought by Lillian Cairns in respect of a separate matter where reference was made to the claimant’s access to

computers and Mr Donaghy was recorded as stating that he did not know who to believe.

Submissions

25. On behalf of the respondent, Mr McKee submitted that in accordance with the Article 130 (3) (a) of the Employment Rights (Northern Ireland) Order 1996, the tribunal must consider the actions of the respondent taking into account the size and administrative resources of the respondent organisation in determining whether the dismissal was fair or unfair. Further, in determining whether the disciplinary sanction was appropriate or disproportionate, Mr McKee submitted that the evidence demonstrated that confidentiality was extremely important to the respondent and that the claimant’s actions were grave and serious. The question for the tribunal was whether the punishment was one that a reasonable employer could impose and that it was not the tribunal’s role to replace it with another penalty. In this regard Mr McKee relied on the decision in Foley v Post Office [2000] IRLR 827. Mr McKee submitted that the respondent gave consideration to alternative sanctions but decided on summary dismissal in view of the seriousness of the breaches which cut across trust and confidence and constituted gross misconduct. There was no evidence of an inflexible policy and no inconsistent treatment. Placing reliance on British Homes Stores v Burchell [1980] ICR 303, Mr McKee submitted that the respondent clearly believed that the claimant had deliberately accessed computer files and did so on reasonable grounds. In this regard, Mr McKee emphasised that that the matter came to light when Mr McGuigan told the claimant to get off the computer and then discovered that the claimant had gone back on the computer and accessed files. The claimant was interviewed and mentioned four people in his statement all of whom were contacted. It was only at a much later stage that Mr Cairns was mentioned and he was not called to give evidence in these proceedings. Mrs Moore’s investigation was only required to be reasonable. In relation to the disciplinary process, Mr McKee submitted that again the size and administrative resources of the respondent were relevant. There was no suggestion of any breach of the Labour Relations Agency Code of Practice. The claimant knew that he was allowed to bring a representative with him and the disciplinary hearing was put back once and the claimant said that he could attend on the second occasion that it was arranged. The claimant had given a number of different versions of the events in statements and hearings and the employer was entitled to decide on the credibility of witnesses. Relying on the Employment Appeal Tribunal’s decision in Linfood Cash & Carry V Thompson [1989] IRLR 235, Mr McKee submitted that this is a matter for the employer to determine rather than the tribunal provided that it does so in a reasonable manner. Mr McKee submitted that there were reasonable grounds for Mr Sheehan’s conclusions which included in particular the inconsistencies in the claimant’s evidence about files

popping up. Mr McKee also drew attention to the claimant’s evidence to the tribunal that he did know how to open files. Mr McKee submitted that the appeal process was also in accordance with the Labour Relations Agency Code of Practice. The claimant was given an opportunity to state his case and produce further statements. Mr McKee submitted that it was significant that the claimant did not make any mention of Mr Cairns during his interview with Mrs Moore. Furthermore, the statements from Mr and Mrs Cairns were inconsistent with the claimant’s evidence and were produced very late in the day. The claimant called neither of them to give evidence to the tribunal. The respondent was entitled not to interview Mr Cairns on the basis that he was not a credible witness. The issue according to Mr McKee was whether there were reasonable grounds for Mr Donaghy’s conclusions which again hinged on the credibility of the claimant which was further undermined by the false details given in job application form for the outreach post. With regard to the penalty, Mr McKee submitted that the sanction was not disproportionate but accepted that the claimant would not have been summarily dismissed simply for disobeying a lawful order.

26. On behalf of the claimant, Mr Cox accepted that the respondent had established a potentially fair ground for the claimant’s dismissal, namely on the basis of his conduct. Mr Cox submitted that the investigation was inadequate and drew attention to a number of oversights. In particular, Mr Cox placed reliance on the fact that Mrs Moore did not interview all of the employees who were in attendance at the Outreach Centre on the day in question including Mr Cairns who was not interviewed because Mrs Moore did not regard him as a credible witness. The defects in the investigation were then carried forward into the disciplinary hearing and the appeal hearing. No witnesses were called other than the claimant and Mr Donaghy did not say why he did not consider Mr Cairns to be reliable. Mr Cox further submitted that Mr Devlin’s role should have been further investigated as he knew precisely what was on the computer. In addition, it was necessary for the employer genuinely to believe in the guilt of the employee and this was undermined by the statement made concerning the claimant by Mr Donaghy at the Lillian Cairns grievance appeal. Mr Cox submitted that the penalty imposed was disproportionate for an employee with a previously clear record both as an employee and a volunteer. Mr Cox also sought to rely on inconsistent treatment on the basis of Post Office v Fennell [1981] IRLR 221 and compared the claimant’s treatment with Mr Cairns who had received a verbal warning for opening an envelope marked private and confidential. Mr Cox accepted that the circumstances were somewhat different but argued strongly that these did not merit awards at the opposite ends of the spectrum. Mr Cox further submitted that failure to obey a lawful order of itself would not warrant summary dismissal albeit that it was difficult to distinguish the two offences. According to Mr Cox the respondent also ought to have taken into account the absence of a password for the computer which was in breach of the respondent’s own policy and should have been considered by the respondent in determining the appropriate penalty.

The law

27. Article 130 of the Employment Rights (Northern Ireland) Order 1996 insofar as relevant provides as follows:-

“130. - (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this paragraph if it –

(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) relates to the conduct of the employee,

(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under a statutory provision.

(3) Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

shall be determined in accordance with equity and the substantial merits of the case.”

28. We bear in mind the approach commended in British Homes Stores v Burchell [1980] ICR 303, in relation to the showing of a reason for dismissal in a misconduct case where Arnold J stated:-

"What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) 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. And 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."

29. Useful guidance as to the application of Article 130 is to be found in the case of Iceland Frozen Foods v Jones [1982] IRLR 439 where the Employment Appeal Tribunal in applying the then equivalent English provision stated as follows:-

“(1) the starting point should always be the words of [Article 130(3)] themselves;

(2) in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

(3) in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4) in many (though not all) cases there is a ‘band of reasonable responses’ to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;

(5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.”

The tribunal must therefore apply the Burchell test followed by the Iceland Frozen Foods test, namely whether the decision to dismiss was within the band of reasonable responses.

Conclusions

30. Before turning to our main conclusions it is necessary to address the three additional matters referred to at paragraph 24 above and touched on in the parties’ submissions. The first matter weighs strongly against the claimant but we were less impressed with the evidence about the second matter which we regard as inconclusive. In relation to the third matter, we do not consider that the statement made by Mr Donaghy in the context of a separate hearing is of any relevance in the present case.

31. Applying the tests derived from the case law, in our view there can be no doubt that

the respondent genuinely believed that the claimant was guilty of misconduct and

that this was based on reasonable grounds. We are entirely satisfied that the

respondent carried out a reasonable investigation. It was not perfect and it would

have been preferable for Mrs Moore to have interviewed Mr Cairns. However, Mrs

Moore interviewed all the witnesses whom she considered could give relevant evidence and we do not consider that the failure to interview Mr Cairns is a sufficiently serious defect to undermine the investigation. Mrs Moore then proceeded

to conscientiously and professionally analyse the evidence before concluding that the claimant should be charged. Mrs Moore received evidence which all pointed toward the claimant’s culpability and while the role played by Mr Devlin was under scrutiny at a later stage in the disciplinary process there was nothing in the evidence gathered by Mrs Moore to suggest that his evidence should not be taken at face value. In addition to criticising the manner of the investigation, the identity of the investigator was also impugned. While it was less than ideal that that the person whose computer was accessed and who was at fault in not installing a password should have been required to carry out the investigation, the respondent was a small organisation with limited resources and Mrs Moore was the only manager available at that time. In these circumstances we are not satisfied that this criticism is justified.

32. No substantial criticism was made about the conduct of the disciplinary hearing by

Mr Sheehan and Mrs Leonard rather the case was made that that the hearing was skewed by the alleged defects in the investigation. In view of our conclusions in relation to the investigation the claimant cannot succeed on this ground. We have paid close attention to the evidence about the disciplinary hearing and it is clear to us that the hearing was conducted in a fair and reasonable manner. In particular we were impressed by the evidence given by Mr Sheehan as to how the evidence was assessed and the panel’s clear and lucid conclusions.

33. The claimant was rather more critical of the appeal hearing but it is clear to us from

the transcript of the appeal hearing and Mr Donaghy’s evidence to the tribunal that the claimant was given a full opportunity to present his case and that Mr Donaghy gave full and fair consideration to all of the representations made by the claimant and his representative. Neither Mr Donaghy nor the tribunal has had the benefit of hearing evidence from Mr McGuigan, Mr Devlin or Mr Cairns. However, it was perfectly open to the claimant to have called any or all of these witnesses to give evidence but this was not done. It is also of some significance that at certain points in the process the claimant accepted responsibility for his actions and did not seek to blame anyone else. This is not surprising as it is clear from the transcript of the appeal hearing that the claimant was faced with incontrovertible evidence that someone had accessed confidential documents on Mrs Moore’s computer on the day in question at times when the claimant accepted that he was on the computer.

34. It is apparent that some of those involved in this affair were under a cloud of

due to misdemeanours of their own. Mr McGuigan and Mr Cairns have both been since dismissed for fraud. However Mrs. Moore, the disciplinary panel and Mr Donaghy could only take decisions on the basis of the information that was before them and in our opinion no valid criticism of their interpretation of the facts before them has been made out. Therefore, applying the three limbed Burchell, test, we are satisfied that the respondent genuinely believed that the claimant was guilty of the misconduct alleged against him on reasonable grounds and carried out a reasonable investigation.

35. In relation to the reasonableness of the disciplinary sanction, it is apparent from the

case law the tribunal’s function in misconduct cases is to determine whether the

decision to summarily dismiss the claimant falls within the band of reasonable responses and not to substitute its view for that of the disciplinary bodies. While summary dismissal was undoubtedly a severe not to say harsh sanction the claimant’s misconduct as found by the disciplinary panel and on appeal was extremely serious in the context of an organisation which placed considerable importance on the duty of confidentiality both in the Employee Handbook and induction training received by the claimant. We are further satisfied that both the disciplinary panel and Mr Donaghy gave proper consideration to alternative punishments but were satisfied that the gravity of the claimant’s conduct warranted summary dismissal. Nor are we persuaded that there is any merit in the submission that the respondent was guilty of inconsistent treatment. It seems to us that there is no valid comparison between the claimant’s behaviour and that of Mr Cairns who received a verbal warning for opening an envelope marked private and confidential. In our view the one-off incident involving Mr Cairns was much less serious than the systematic accessing of confidential information on the computer by the claimant. Against this background, we are entirely satisfied that the respondent was entitled to summarily dismiss the claimant. The claimant was therefore fairly dismissed and we dismiss the claim.

Chairman:

Date and place of hearing: 9 January 2009; and

28 - 29 January 2009, Belfast

Date decision recorded in register and issued to parties:

00935-08 IT 17