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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Spence v Department of Agriculture and [2010] NIIT 505_10IT (29 November 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/505_10IT.html
Cite as: [2010] NIIT 505_10IT
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CASE REF: 505/10
CLAIMANT: Edward John Spence
RESPONDENT: Department of Agriculture and Rural Development
DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed.
Constitution of Tribunal:
Chairman: Mr Uel Crothers
Members: Mr Ian O’Hea
Mrs Beverley Heaney
Appearances:
The claimant was represented by Mr B McKee, Barrister-at-Law, instructed by
Worthington Solicitors.
The respondent was represented by Mr M Wolfe, Barrister-at-Law, instructed by the Departmental Solicitors Office.
The Claim
1. (i) The claimant claimed that he had been unfairly dismissed by the respondent.
The respondent denied his allegations in their entirety.
(ii) The title of the respondent is amended to that shown above
The Issues
2. The issues, as agreed by the parties, were as follows:-
1. Was the claimant unfairly dismissed?
2. What was the reason or the principle reason for the dismissal?
(i) Was the reason misconduct?
(ii) Was the reason the protected disclosure made by the claimant?
3. Was the dismissal fair or unfair in the circumstances?
4. Was the dismissal procedure reasonable?
A list of the agreed legal and factual issues is appended to this decision together with an agreed chronology. The claimant’s Counsel did not refer to a remedy in the context of protected disclosures under Article 70B of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), until the submission stage. This Article has nevertheless been reproduced at paragraph 6 below.
Sources of Evidence
3. The tribunal heard evidence on behalf of the respondent from Gerry McPeake, Human Resources Manager, David Trelford, Human Resources Director, and Mark Maxwell, Departmental Records Officer and Acting Departmental Information Manager at the material time. The claimant also gave evidence together with his wife, Rebecca Spence. The tribunal was presented with extensive bundles of documentation and took into account only documentation referred to in the course of evidence.
4. During the hearing, the tribunal referred to the Northern Ireland Court of Appeal Decision in Patrick Joseph Rogan v South Eastern Health and Social Care Trust (“Rogan”) - Judgement delivered on 13 October 2009. The tribunal read out sections of paragraphs 15 and 26 of the judgment of Morgan LCJ as follows:-
[Referring to Article 130 of the Order]
“Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and …… to demonstrate that it was a reason relating to the conduct of the employee. If the employer successfully does so the tribunal then applies its judgment as to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal…
The judgement as to the weight to be given to evidence was for the Disciplinary Panel and not for the tribunal. In this instance it appears that the tribunal has strayed into the forbidden territory of making its own determination of the evidence.”
The tribunal therefore sought to avoid straying into the “forbidden territory” of making its own determination of the evidence.
Findings of Fact
5. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact on the balance of probabilities:-
(i) The claimant joined the Northern Ireland Civil Service on 9 September 1985. He was promoted from Agricultural Inspector Grade III to Agricultural Inspector Grade II on 1 November 1994 and from that date he worked in Dundonald House, Belfast, until the end of August 1999. From September 1999 the claimant worked at Greenmount and was then transferred to Cookstown on 18 August 2003. The claimant remained at Cookstown until he was transferred on 8 October 2008 to his last post at Grade II Senior Business Technologist, crops and horticulture based at CAFRE in Greenmount Campus. As a result of disciplinary proceedings the claimant was dismissed on 26 March 2010, being the effective date of termination of his employment with the respondent.
(ii) Following an investigation and a Disciplinary Hearing before Gerry McPeake on 8 January 2010, the claimant received a disciplinary outcome letter dated 28 February 2010, which reads as follows:-
“1. On 22 December 2009 you were informed that the Department was considering taking disciplinary action against you in relation to the following breaches of conduct:-
1. You altered the access and security control on 113 records held within TRIM which you had not been granted “view” access to and then viewed the majority of these records. A total of 81 of those records contained information about you, 11 related to other individuals and 21 related to management and workforce issues that had no relevance to you.
2. In altering the access and security settings of the 113 records and then viewing the majority of them, you breached various Departmental and NICS procedures that are detailed later in this letter.
3. You misused the Departmental computer system by altering the access control of the records within TRIM.
2. You attended a disciplinary meeting on 8 January 2010 when you were given the opportunity to respond to the charges against you.
3. I have given careful consideration to all the evidence available including the information provided by you at our meeting and have decided that your behaviour amounts to gross misconduct for the reasons outlined below.
4. There have been two distinct issues related to this investigation. Firstly, there has been the issue of the access controls that were in place on the 113 documents before you altered them. Throughout the investigation you have stressed that the appropriate access controls were not in place in the first instance and that it was the negligence of other named individuals that resulted in personal documents relating to you and others not being properly protected. You have also stressed that this negligence resulted in the access to “View Metadata” and Modify Record Access” being set at DARD which in turn gave you as an End User (and all other DARD End Users) permission to alter the access settings and then view the documents.
5. The Department has confirmed and acknowledged that before you altered the records the access controls were set at DARD and this enabled you to amend the controls that others had placed on the documents. Following a review by Information Management Branch (IMB) the facility that allowed End Users to amend the access controls was removed and IMB are continuing to establish why the access controls on the documents in question were not set appropriately and whether further action against those involved in [is] necessary.
6. Turning to the second issue, for which you have been charged and relates to your actions in altering the access controls and then viewing the documents, I have given this matter detailed and thorough consideration. I have concluded that there is sufficient evidence to clearly demonstrate that you did in fact commit the breaches of conduct.
7. In reaching this conclusion I
have taken account of a range of evidence and documentation. This has included
the TRIM record and audit logs provided by IMB and Service Delivery Group (SDG)
that detail the TRIM records that were changed and viewed by you, including the
dates and times that these actions took place. These records were also
forwarded to you on 29 December 2009. At the meeting with me on
8 January 2010 you confirmed that it was you and
no-one else that had changed the controls and viewed the documents in
question. I have also considered the witness interviews from IMB and SDG staff
that explained in detail the background to TRIM, how you had modified the
records and the impact of your actions. When we met on 8 January you also
confirmed how you had modified the records. In addition, I considered a range
of Departmental and NICS policies and procedures that are set out later in this
letter. All of this evidence and documentation was contained within an
investigation report produced by HR Connect dated 13 November 2009 and
an addendum report dated 10 December 2009.
8. As you admitted that it was you that changed the access controls and viewed the documents I have therefore focused my deliberations on whether or not your actions were a breach of conduct and whether they were justified and acceptable. During your meetings with HR Connect on 11 June 2009 and with me on 8 January 2010 you stated that you discovered that documents containing personal information about you did not have appropriate controls in place. You went on to say that you carried out a thorough audit through extensive searches to establish the extent of the problem and that you also carried out further audits through other subject area searches. These other subject area searches led you to modify the access controls and view documents that related to personal information about other individuals and management issues that were not relevant to you.
9. In explaining your actions further you said at the HR Connect meeting that you opened records about other staff because you wanted to see if there was anything in them about you. At the meeting with me on 8 January you also said that you did not always know what documents you were opening because you did not look at the titles.
10. I do not accept that the explanations that you have given justify your actions. Over the period from 4 March 2009 and 30 March 2009 you changed the access controls on 113 documents and viewed 108 of them. Of those documents, 21 related to management and workforce planning matters that were not relevant to you and many of these contained personal information about other individuals. The management and workforce planning documents and the documents relating to other individuals would not have been disclosed in full under FOI. Although the majority of documents did relate to personal information about you and either was already in your possession or would have been made available to you through Freedom of Information or Data Protection, you had no right to access and examine the records in the manner that you used.
11. At the interviews on 11 June 2009 and 8 January 2010 you also stated that you were concerned that there was a breach of the Data Protection Act 1998 and so you made contact with the Information Commissioner’s Office on 9 March 2009 and also with Gerry Lavery and me on the same date. It is obvious that you were familiar (at least in part) with the policies and procedures surrounding the protection of personal information, yet you persisted in viewing a large number of sensitive documents over a prolonged period, 23 of which after you reported the matter on 9 March 2009.
12. Whilst the Department acknowledges that the access controls could have been set more securely before you altered them, this did not entitle you to view documents which you had not been granted permission to view, despite your belief that you were fully justified in doing so. I note that when you initially opened each record the access control panel clearly stated “View Document; Access Denied” but that you continued anyway, changed the View access setting to “Everyone” and then viewed the majority of the documents. I could accept that you did not notice the detail on screen and did not realise that you had been denied access to view the documents on a few occasions however you went through the same process 113 times. You should not have set the View access to “Everyone” without specific authorisation from senior management and in doing so you further compromised the security of the documents by making them available to all staff across the NICS who had access to TRIM.
13. In conclusion, there is no dispute over the fact that you changed the access controls and then viewed the documents and this is evident from the TRIM record and audit logs and from your own admission. It is also evident from the number of documents involved, the period over which you carried out this activity and your unacceptable explanations that you were acting in an inappropriate manner. The access controls on the documents that you altered could have been set in such a way that would have eliminated any inappropriate access but I believe that you acted recklessly and exploited the access controls in order to view a range of documents that you clearly did not have permission to view so that you could see what, if anything was written about you.
I have considered a range of Departmental and NICS policies and procedures and I have concluded that you specifically breached the following:-
14. NICS Policy on Personal Records and Data Protection
Section 4.01 of the NICS Staff Handbook, paragraph 2.1 in that your actions did not adhere to the value of privacy and security of personal information. Under paragraph 3.2 you did not have a right to examine your personal files/records.
15. Data Protection Act 1998
Under the DPA, Part vi,
paragraph 55, you knowingly or recklessly, without the consent of the data
controller, obtained personal data or information contained in the personal
data and the exclusions set out in
sub paragraph 55 (2) did not apply.
16. NICS Standards of Conduct Policy
Section 6.01 on the NICS Staff Handbook. The following paragraphs apply:-
Para 2.1b - You misused information that you acquired during the course of your duties by accessing it, viewing it and making it available to all staff across the NICS;
Para 15.1 - You did not exercise care in handling the information that had come into your possession and did not comply with your duty of confidentially;
Para 32.1 - You did not properly use Government equipment, by misusing your PC and the TRIM system to access and view records that you were not entitled to do so;
Annex 1, para 2.1.1b - You did not act in a professional way that deserves and retains the confidence of those with whom you have dealings;
Annex 1, para 2.1.2c - You disclosed official
information without authority to all staff across the NICS;
Annex 1, para 2.2.1b - You used computer and IT resources for purposed other than for which they were intended.
17. Records NI Guidance Note 6
Page 3, penultimate and final paragraphs - you used “Everyone” setting without the specific authorisation to do so by senior management.
18. AEC 84/08
Final paragraph - you failed to ensure that documents with sensitive information, including personal data, were appropriately secured by making them available to all staff in the NICS.
Under the NICS Disciplinary Procedures, Section 6.03 of the NICS Staff Handbook I believe your actions to be gross misconduct of a serious nature. I have reached this conclusion because of the number of policies and procedures that you breached over a prolonged period. You compromised the confidentiality and integrity of the department’s information system, TRIM, and as a result of your actions a number of documents of a personal and sensitive nature were made available to all staff across the NICS. In doing so you invaded the privacy of others and management and you also exceeded your rights in relation to your own records.
I have decided that you should be dismissed. The reasons for this decision are outlined below.
In deciding what penalty to impose I have considered if there are any mitigating factors present and how they should be taken into account. As I have already mentioned, throughout this investigation you have made the case that the proper access controls were not in place and that it was the negligence of others that led to your information and that of others not being properly protected and to you being able to take the actions that you did. I have also already stated that the Department has acknowledged that the access controls could have been set more securely but I do not consider that this justified the inappropriate actions that you took. I am not aware of any other mitigating factors nor did you put forward any others.
I have also considered the full range of disciplinary penalties that are available. I do not consider a written reprimand to be appropriate because it would not reflect the seriousness of the case. I do not consider a form of financial penalty to be suitable because it would be more appropriate if you had caused culpable loss or damage, and I do not think it would have reflected the seriousness of the case. I do not consider moving you to another location or other duties to be suitable because it would be more appropriate if it was necessary to move you away from other individuals and I do not think it would have reflected the seriousness of the case. I do not consider downgrading or a ban on promotion to be suitable because it would not regain the Department’s confidence in you and it does not reflect the seriousness of the case.
I have concluded that the gravity and nature of your offences as outlined in this letter are such that, regretfully, your behaviour warrants dismissal.
Your dismissal will take effect from Friday, 26 March 2010.
You should now arrange to return any equipment, documents, books etc that have been issued to you. In accordance with the HR Handbook, an overpayment may be raised against you if any leave has been taken in excess of your leave entitlement.
Right of Appeal
You have the right to appeal against this decision. If you wish to avail of this right please advise me in writing, setting out your reasons for appeal, within 10 working days from the date of this letter.
You also have the right of appeal against this decision to the NICS Appeal Board within 3 months from the date of your dismissal. If you wish to exercise this right you should state the reasons for your appeal in writing and send it to:-
“The Secretary
NICS Appeal Board
4th Floor
Royston House
Upper Queen Street
Belfast BT1 6FD
Yours
sincerely
Gerry McPeake
HR Manager DARD”
(iii) The claimant attended an all day training session for end users on the TRIM system in September 2007. The tribunal was referred to and examined the training documentation insofar as same was relevant to the issues before it. The claimant did not retrieve and, in consequence, did not consult this training documentation before embarking upon his experimentation with the TRIM system at the beginning of March 2009 which set in motion a train of events leading ultimately to his dismissal.
(iv) As appears from the attached chronology, the claimant made a protected disclosure to the Information Commissioners Office on 6 March 2009 raising concerns about the security of the TRIM system. The tribunal is satisfied that the raising of his concerns with the Information Commissioners Office was not related to the respondent’s subsequent decision to instigate a disciplinary investigation. On 9 March 2009, the claimant raised a grievance with Gerry McPeake which reads as follows:-
“I have had dealings with Personnel Management and SDG Branches in the last few months. Whilst working on TRIM I became aware that there were a series of documents stored with very sensitive personal information relating to myself and my contacts with the above branches. I thought at first that these had appropriate TRIM Access Controls in place but on further examination I am ALARMED to find that this is not the case. These documents are easily accessible to ALL who have access to TRIM!
The documents and containers are labelled in such a way as to easily allow my identification to be known and the contents to be freely viewed.
I view this as a very serious infringement of my rights under the Data Protection Act through lax security of my personal documents and information on ongoing private matters with management by staff in both SDG and Personnel Management Branches.
Submitted for your URGENT ATTENTION!
cc Martin McKendry, Line Manager and Philip Renshaw, NIPSA
Regards
John Spence”
(v) The respondent decided to initiate a disciplinary investigation. The claimant was informed by his Line Manager, Martin McKendry, of this course of action during an interview on 31 March 2009. It was part of the claimant’s case that Mr McKendry stated to him that “at this point neither I or anyone else in the Department can discuss the investigation with you”. The tribunal does not accept the claimant’s explanation that this statement meant that he could not discuss investigatory or disciplinary matters with a representative or that he could not effectively prepare his defence. The claimant, who was previously a member of NIPSA, and had retained a Trade Union representative for earlier grievances, did not have any representation during the investigation process or the subsequent Disciplinary and Appeal Hearings, despite the respondent advising him in writing that he had a right to representation which, apart from a Trade Union Representative, could include a work colleague. The claimant’s explanation that his Trade Union Representative withdrew from representing him at a previous stage because the claimant chose not to have him as his representative during a grievance hearing, does not provide a credible explanation as to why he did not avail of any representation during the disciplinary process.
(vi) On 2 April 2009, Gerry McPeake appropriately suspended the claimant’s grievance made on 9 March 2009, on the basis that it could not be dealt with without straying into the disciplinary matter, which took precedence. He then decided to progress with the investigation which was carried out by Marie Quinn of HR Connect. She conducted interviews between 6 May 2009 and 25 August 2009 and submitted an investigation report to Gerry McPeake on 14 November 2009. Gerry McPeake requested that further matters should be investigated and an addendum report was submitted by Marie Quinn on 1 December 2009. The tribunal is satisfied that the respondent carried out as much investigation into the matter as was reasonable in all the circumstances of the case, without the need for a computer demonstration, and that the claimant was afforded a full opportunity to provide an explanation in relation to the allegations made against him.
(vii) The tribunal examined, (insofar as relevant), the respondents’ established agreed disciplinary procedure and is satisfied that the disciplinary hearing and the subsequent review hearing on appeal were carried out in accordance with the that procedure, and that the Labour Relations Agency Code of Practice was not breached in the respects alleged. Furthermore, the claimant was afforded a further appeal to the Civil Service Appeal Board, which was unanimously dismissed. The Board concluded in the summary section of its report that:-
“Finally it is important to record that the Department dismissed Mr Spence on the ground of gross misconduct and not because of his perception that he made a protected disclosure under the Public Interest Disclosure (NI) Order 1998”.
(viii) The tribunal fully considered the evidence, both documentary and oral, relating to representations made by the claimant before and during the disciplinary and subsequent appeal hearings, and is satisfied that it was appropriate for Gerry McPeake to conduct the disciplinary hearing, and for Mr Trelford to conduct the subsequent appeal hearing.
(ix) The claimant presented himself as an articulate and intelligent witness who, in the course of conducting various grievances on occasions prior to his dismissal, had a knowledge of various procedures and was experienced in interfacing with colleagues in progressing his grievances. The tribunal is satisfied that the claimant had sufficient acquaintance with some if not all of the documents referred to in the correspondence convening the disciplinary hearing, and which are expanded in the disciplinary outcome letter, and was placed in a position to galvanise any further arguments he had based on these documents and any further document provided to him during the subsequent appeal hearings held on 18 March 2010 and 4 June 2010 respectively.
(x)
The tribunal is satisfied that it
is not the respondents’ procedure to disclose its investigation report to a
disciplinee until after the disciplinary process is completed.
(xi) The tribunal was cognisant of the fact that the disciplinary outcome letter made no reference to the contentions made by the claimant in respect of a protected disclosure or specifically in relation to his work record with the respondent. It carefully considered the judgement of the Disciplinary Panel, consisting of Gerry McPeake, as to the weight given by him to the evidence placed before him and the reasoning in his findings leading to the dismissal of the claimant. The tribunal applied the same test insofar as relevant to the appeal hearings. It also considered the section in Annex 1 to the agreed disciplinary procedure and the example relied on by the respondent in dismissing the claimant, which reads as follows:-
“4. Misuse of computer systems - any wrongful or unauthorised
access to IT Systems or other breach of IT Security”.
(xii) In relation to the protected disclosure aspect of the case, the tribunal also carefully considered the evidence given by the claimant’s wife, Rebecca Spence, covering the period from the claimant’s removal from the position of Chief Potato Inspector in 1999 and the impact of that and subsequent events including, particularly, the period from March 2009 until the date of hearing.
(xiii) The tribunal considered the claimant’s evidence in relation to his preferred remedy of reinstatement or in the alternative re-engagement with the respondent together with evidence of his alleged loss in the event of the tribunal deciding that he should not be entitled to either reinstatement or re-engagement. The respondent confirmed that the claimant’s post remained vacant, subject to budgetary review and that there was no technical impediment in relation to certain posts for which re-engagement of the claimant may be appropriate.
The Law
6. (i) The law in relation to protected disclosures is set out in Part VA of the Order. In relation to disclosures qualifying for protection Article 67B states as follows:-
“(1) In this Part A “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following –
(a)
That a criminal offence is
being committed or is likely to be committed;
(b)
That a person has failed, is
failing or is likely to fail to comply with any legal obligation to which he
is subject;
(c) That a miscarriage of justice has occurred, or is occurring, or is likely to occur;
(d) That the health or safety of any individual has been, is being or is likely to be endangered;
(e) That the environment has been, is being or is likely to be damaged, or;
(f) That information tending to show any matter falling within any one of the preceding sub-paragraphs has been, is being or is likely to be deliberately concealed ……….
(5)
In this Part “the relevant
failure”, in relation to a qualifying disclosure, means the matter falling
within sub-paragraphs (a) to (f) of paragraph (1).
Disclosure to employer or other responsible person
67C. — (1) A qualifying disclosure is made in accordance with this
Article if the worker makes the disclosure in good faith —
(a) to his employer, or ……….
Protected disclosures
70B. — (1) A worker has the right not to be subjected to any detriment by
any act, or any deliberate failure to act, by his employer done on the ground
that the worker has made a protected disclosure.
(2) …… this Article does not apply where —
(a) the worker is an employee, and
(b) the detriment in question amounts to dismissal (within the meaning of
[Part XI]).”
Article 134A of the Order states as follows:-
“An employee who is dismissed shall be regarded for the purposes of this Part
as unfairly dismissed if the reason (or, if more than one, the principle
reason) for the dismissal is that the employee made a protected disclosure”.
(ii) The law in relation to unfair dismissal is set out in Rogan as follows:-
“… the statutory provisions governing the determination of the fairness of the dismissal were found in article 130 of the Employment Rights (Northern Ireland) Order 1996.
“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—
…. (b) relates to the conduct of the employee,
(4) 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
(b) shall be determined in accordance with equity and the substantial merits of the case."
Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and in this case to demonstrate that it was a reason relating to the conduct of the employee. If the employer successfully does so the tribunal then applies its judgment to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal.
[16] The manner in which the tribunal should approach that task has been considered by this court in Dobbin v Citybus Ltd [2008] NICA 42. Since there was no dispute between the parties in relation to the relevant law I consider that it is only necessary to set out the relevant passage from the judgment of Higgins LJ.
“[48]… The equivalent provision in England and Wales to Article 130 is Section 98 of the Employment Rights Act 1996 which followed equivalent provisions contained in Section 57 of the Employment Protection (Consolidation) Act 1978.
[49] The correct approach to section 57 ( and the later provisions) was settled in two principal cases - British Homes Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 – and explained and refined principally in the judgments of Mummery LJ in two further cases - Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111.
[50] In Iceland Frozen Foods Browne-Wilkinson J offered the following guidance –
‘Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by section 57(3) of the Employment Protection Consolidation) Act 1978] is as follows:-
(1) the starting point should always be the words of section 57(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.’
[51] To that may be added the remarks of Arnold J in British Homes Stores where in the context of a misconduct case he 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 of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure,” as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter “beyond reasonable doubt.” The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion’.”
(2) At paragraph 26 of Rogan, Morgan LCJ states as follows:-
“The judgment as to the weight to be given to evidence was for the disciplinary panel and not for tribunal. In this instance at appears that the tribunal has strayed into the forbidden territory of making its own determination on the evidence”.
Again at paragraph 27 of his judgment, Morgan LCJ states:-
“In our view the conclusion by the tribunal that “the panel found as proven fact incidents of assault as having occurred against the clear weight of the evidence” is a firm indication that the tribunal engaged in the weighing of these matters when it was for the disciplinary panel to carry out that task”.
In paragraph 28 he continues:-
“The tribunal’s conclusion that the disciplinary panel had not approached this matter in a fully open and enquiring manner appears to have been reached because of its view about the weight of the evidence. None of this is an indicator of a lack of reasonable investigation”.
Girvan LJ in paragraph 7 of his judgement states as follows:-
“The investigation was one which was reasonable in the circumstances. It is clear from the authorities that the employer’s reasoning must not be subjected to the kind of scrutiny to which an appellate court would subject a tribunal decision.”
Submissions
8. The tribunal considered the helpful written submissions made by both parties’ Counsel, together with the further oral submissions made on the 4 November 2010. Copies of the written submissions are attached to this decision.
Conclusions
9. The tribunal, having carefully considered the evidence together with the submissions from the parties’ representatives, and having applied the principles of law to the findings of fact concludes as follows:-
(i) The tribunal finds it helpful to replicate the statement of issues in paragraph 15 of Rogan, duly adapted as follows:-
(1) Was the dismissal of the claimant by the
respondent fair in all the circumstances? In
determining this primary issue the Tribunal should consider the following:
(a) Has the respondent shown that the reason relied
upon by it in its decision to dismiss the
claimant related to the claimant’s conduct?
(b) Had the respondent a reasonable suspicion
amounting to a belief in the guilt of the
employee of that misconduct at the time of
its decision?
(i) Had the respondent reasonable grounds
at the time of its decision on which to
sustain its belief in the misconduct
of the claimant?
(ii) At the stage the respondent took the
decision to dismiss, had the respondent
carried out as much of an investigation/enquiry into the
matter as was reasonable in all the circumstances?
(c) Was the dismissal a fair sanction in the
circumstances?
(d) Was the claimant afforded an effective right of
appeal in the circumstances?
(ii)
The tribunal answers all
questions in the affirmative. The tribunal is also satisfied that the claimant
cannot rely on the protected disclosure provisions in the Order to establish a
remedy against the respondent.
(iii) The tribunal therefore dismisses the claimant’s claims.
Chairman:
Date and place of hearing: 31-August 2010-3 September 2010, 10 September 2010,
23-24 September 2010, 4 November 2010.
Date decision recorded in register and issued to parties:
SPENCE V DARD NI
__________________________________________________________________
CHRONOLOGY OF EVENTS & ASSOCIATED DOCUMENTS
Date Event Ref
September 1985 Spence
starts employment with DARD
November 1994 Spence promoted to
Agricultural Inspector Grade 2
September 1999 Spence moved to Greenmount
August 2003 Spence moved to Cookstown
22 March 2007 17:14 EML Maxwell to Lead Implementation
Managers re
access controls
& “everyone” being used 4-413
05 September 2007 Steria provide training on TRIM
4-001
Delegate
feedback from Spence about training 4-020
October 2008 Spence Grade 2 Senior
Business Technologist Crops
and
Horticulture at CAFRE in Greenmount Campus.
02-06 March 2009 Spence views documents 4-416
14:34 EML Spence contact Information
Commissioners Office rf 4-111
09 March 2009 12:09 EML Spence complains to McPeake 1-201
McPeake makes initial
enquiries of PMB evidence
16:00 EML McPeake contacts McCartney
& Maxwell 1-201
16:50 EML McPeake replies to Spence 1-203/4
17:07 EML Spence replies to McPeake
mentions other staff 1-204
Spence views
documents
10 March 2009 10:21 EML Spence informs Lavery of his Grievance
4-113
14:21 EML McPeake update to Spence re
PMB 1-203
14:50 EML Spence copies McPeake into
grievance 4-114
Spence views
documents
11 March 2009 Spence views documents
Date Event Ref
13 March 2009 Spence
views documents
16-20 March 2009 Spence views documents
23-27 March 2009 Spence views documents
23 March 2009 End of period for grievance
meeting to be heard 3-419
28 March 2009 11:09 EML ICO reply to Spence 4-109
30-31 March 2009 Spence views documents
31 March 2009 14:45 MTG McKendry meets Spence evidence
LTR McKendry confirms
points in meeting 1-206
01 April 2009 17:52 EML Maxwell contacts Gault (Steria) re
security 5-025
02 April 2009 Charlie Kelly accesses TRIM
to secure documents
EML McPeake
informs Spence that he has suspended the
Grievance 3-276
15 April 2009 17:18 EML Maxwell to Steria change to DARD
record type 5-089
Internal
Change Control Request 5-091
20 April 2009 LTR McPeake notifies Spence of
formal investigation 1-199
06 May 2009 10:15 INT Quinn (HR Connect) interviews
Maxwell 1-209
11:55 INT Quinn interviews Maguire 1-237
15 May 2009 10:00 INT Quinn interviews McCartney 1-251
14:29 EML Maguire asks for Historical
Control Records: HCR 5-009
20 May 2009 15:27 EML Steria provide HCR 5-009
16:56 EML Further query
about details of HCR 5-009
17:18 EML Clarification
from Steria re HCR 5-008
22 May 2009 09:55 EML Maguire
concerns view document in HCR 5-007
26 May 2009 14:08 EML Steria provide “DARD Access Controls
Modified.xls”5-007
Spreadsheet 5-011
11 June 2009 INT Quinn interviews Spence
24 June 2009 LTR Spence explains refusal to sign
off record 1-111
29 June 2009 11:17 EML Quinn asks McCartney & Maxwell
re Spence queries
Date Event Ref
over access controls 1-110
08 July 2009 12:10 EML Spence Grievance vs HR Connect
& PMB 4-155
16:44 EML Spence grievance vs McPeake
4-157
16:45 EML Spence Grievance v McPeake 4-156
17 July 2009 16:50 EML Maxwell responds to Quinn’s query 1-108
25 August 2009 15:10 INT Quinn interviews Maxwell for the
second time 1-229
13 November 2009 Quinn completes investigation
report 1-113
24 November 2009 EML
Maguire sends TRIM references for documents he
wants
historical access control information on. 5-004
01 Dec 2009 EML McPeake requests additional
information from Quinn 3-016
10 Dec 2009 RPT Quinn completes Addendum to
Investigation from 3-001
LTR ICO informs DARD of
Spence complaint 4-124
17 Dec 2009 LTR McPeake notifies Spence of
disciplinary 3-240
18 Dec 2009 EML Spence request information for
disciplinary
22 Dec 2009 09:30 EML McPeake adjourns hearing for
afternoon 3-384
LTR McPeake notifies Spence
of disciplinary on 8th Jan 3-251
29 Dec 2009 MEM McPeake provides some documents 3-253
04 January 2010 15:48 EML Spence again requests documents 3-383
04 January 2010 16:13 EML McPeake repeats refusal to release
documents 3-256
05 January 2010 11:29 EML Spence refers to ni DIRECT, documents
& witnesses 3-255
11:45 EML McPeake notes contents of
Spence’s email 3-382
08 January 2010 MTG Disciplinary meeting
Spence’s submission 3-259
Notes of Meeting
with footnotes 3-289
11 January 2010 LTR Spence writes to McPeake about
his concerns 3-297
13 January 2010 EML Maguire-Steria re change control
for access report 5-001
18 January 2010 LTR Spence sets out further
complaints re disciplinary 3-300
19 January 2010 MEM McPeake responds to Spence. and
refers to: 3-302
NICS
Policy on Personal Records
Date Event Ref
Data Protection Act 1998
NICS standards of conduct
Records NI Guidance Note 6
AEC 84/08 4-030
22 January 2010 13:42 EML refusal to progress grievance 4-163
26 January 2010 LTR DARD to ICO re DPA compliance 4-119
02 Feb 2010 Department complies with subject re access request 3-329
Access control spreadsheet 3-331
LTR ICO to T Halton re DARD compliance 4-117
LTR ICO to Spence re DARD compliance 4-127
09 Feb 2010 12:05 EML Spence sets out breakdown of documents 3-329
26 Feb 2010 LTR Dismissal Letter 3-337
08 March 2010 LTR Letter of Appeal 3-343
15 March 2010 LTR Spence requests documents prior to appeal 3-353
13:57 EML Trelford to Spence re appeal hearing 3-355
18 March 2010 14:00 MTG APPEAL HEARING
MIN minutes of appeal hearing 3-356
24 March 2010 LTR APPEAL DECISION 3-362
26 March 2010 Dismissal takes effect
Spence suggests that grievances be dealt with
Under modified procedure
29 March 2010 LTR Appeal to Civil Service Appeal Board 3-363
Spence – DARD Submission to CSAB 3-392
04 June 2010 MTG CASE HEARING
LTR Notification of outcome of CSAB appeal 3-398
RPT CASB Appeal Hearing Report 3-399
DATE EVENT Ref
29 July 2010 LTR rejection
for Newry & Mourne post 5-105
30 July 2010 LTR rejection for Omagh post 5-124
02 Aug 2010 LTR Response to claim for jobseekers allowance 5-137
Spence v DARDNI
Legal & Factual Issues
Was the claimant unfairly dismissed?
What was the reason or principal reason for the dismissal?
Was the reason misconduct?
Was the reason the protected disclosure made by the claimant?
Was the dismissal fair or unfair in the circumstances?
Was the dismissal procedure reasonable?
Did the employer breach its contractual grievance policy?
Did the employer show that the alleged conduct was misconduct? If not, does
that render the dismissal unfair?
Did the employer show that the offence may result in dismissal? Did the failure
to provide sight of the witness statements upon which reliance was placed
render the dismissal unfair?4
Did the failure to provide sight of many of the documents upon which reliance
was placed render the dismissal unfair?
Was the claimant prevented from calling witnesses? If so, did the prevention to
call witnesses render the dismissal unfair?
____________________________
‘Article
130(1) of the 1996 order
2 Foley v Post Office [2000) IRLR 827; Burchell v British Home Stores [1980)
ICR 3030n
3Note
that each of the factors set out are relied upon as contributing to the
unfairness of the dismissal
Louies v Coventry Hood and Seating Co Ltd [1990) ICR 54;
Hussein v Elonex plc [1999] IRLR 420
Was the failure to replicate or attempt to replicate the
claimant’s procedure for opening documents such a fundamental omission from the
investigation as to render the investigation and any decision relying upon it
unfair?
Should the decision maker have recused himself after becoming the subject of a
grievance? If so, by hearing the disciplinary matter was the dismissal rendered
unfair?
Did the employer fail to comply with the LRA Code? If so, do the failures
render the dismissal unfair?
Did the sanction of dismissal fall within the reasonable range of responses?5
Did the employer take the claimant’s length of service and exemplary
disciplinary record into account?
Was the treatment of the claimant by employer inconsistent?6 Were
other similar breaches of security treated as disciplinary?
Is an appeal which acts only as a
review and not a re-hearing capable of rendering an otherwise unfair dismissal
fair?
Should the appeal decision maker have recused himself after becoming the
subject of a grievance? If so, by hearing the appeal was the dismissal rendered
unfair?
Did the claimant contribute in any way to his dismissal? If so, to what extent?
__________________________________
5Boys and Girls Welfare Society v McDonald [1997] ICR 693
6Post Office v Fennell; London Borough of Harrow v Cunningham [1996]
256
____________________________________________________________________________________
Did the employer comply with the statutory
grievance policy? If so, what uplift is applicable?
Should the claimant be reinstated? If not, what loss has the claimant suffered?
What is the claimant’s loss?
What are the prospects of the claimant obtaining future employment?
When is he likely to obtain such employment and at what remuneration?
Has the claimant mitigated his loss?
What is the claimant’s pension loss?
What is the appropriate withdrawal factor?
1
OFFICE
OF THE INDUSTRIAL TRIBUNALS IN NORTHERN IRELAND
BETWEEN
EDWARD JOHN SPENCE
CLAIMANT
-AND-
DEPARTMENT OF AGRICULTURE AND RURAL DEVELOPMENT
RESPONDENT
CASE REP: 505/10
SUBMISSIONS
ON BEHALF OF THE RESPONDENT
Background
1.
Following
a disciplinary meeting which took place on the 8 January 2010 the
Claimant was dismissed from his job of Agricultural Inspector (Grade II).
The
dismissal took effect from the 26 March 2010.
2. In the letter notifying him of his dismissal (p.337-3) the disciplinary officer, Mr. McPeake, provided a detailed explanation setting out the reasons for the dismissal. It is important that the Tribunal considers this letter in its entirety.
3. Mr. McPeake appealed against the decision. His appeals, including an appeal to the Civil Service Appeal Board, a body which is independent of management, were dismissed.1
4. The Claimant alleges that the decision to dismiss him constituted an unfair dismissal for the purposes of the Employment Rights (NI) order 1996. Allied to this complaint is an allegation that he was unfairly dismissed from his employment because he had engaged in an act of “whistleblowing,” that is, that he had made a protected disclosure in which he alleged that the Respondent had contravened the Data Protection Act.
5. It is the Respondent’s contention that the decision to dismiss the Claimant was fair and reasonable, and was a proportionate response to his misconduct, and that in no
___________________________________________
1Page 390-406(3) contains the record of the Northern Ireland civil Service Appeal
Board and its decision
2
sense
whatsoever was the decision to dismiss the Claimant influenced by any
protected
disclosure.
The
Legal Position
6. The starting point is Article 130 of the Employment Rights Order (NI) 1996, Article 130 provides that in determining whether a dismissal of an employee is fair or unfair, it is for the employer to show the reason for the dismissal, and that it is a potentially fair reason, that is “a reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”2 A potentially fair reason includes one which relates to the conduct of the employee: Article 130(2)(b).
7. Article 130(4) of the Order then provides;
(4) 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
(b) Shall be determined in accordance with equity and the substantial merits of the case.
8. Article 134A of the Employment Rights Order provides that a dismissal is automatically unfair if the principal reason for it is that the employee made a protected disclosure3:
134A. An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal Is that the employee made a protected disclosure.]
9. It is trite law that the Tribunal’s approach to Article 130 cannot and must not involve a rehearing of the original disciplinary process. There are many authorities describing the parameters of the Tribunal’s role in considering complaints of unfair dismissal. Perhaps, the most useful starting point in this context is to consider the remarks of Morgan, LCJ in the case of Rogan.
__________________________
2Artlcle 130(1)(b) of the Employment Rights Order (NI) 1996
3The meaning of protected disclosure is contained at Article 67A of the 1996 Order
3
10. After setting out the relevant provisions of Article 130 the Lord Chief Justice said:
‘Those provisions make it plain that the burden of proof Is on the employer to establish the reason for the dismissal and in this case to establish that if it was a reason relating to the conduct of the employee, if the employer successfully does so the tribunal then applies its judgment to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal.”4
11. The more difficult question relates to how the Tribunal is supposed to apply its judgment in circumstances where the reasonableness of the employer’s decision making is at the heart of the dispute. The Lord Chief Justice addressed that critical question at paragraph 16 of his judgment. Here he cited the decision of the Northern Ireland Court of Appeal in Dobbin5, which in turn cited the leading English authorities including British Home Stores —v- Burchell, Iceland Frozen Foods —v- Jones, Foley —v- Post Office, and J. Sainsbury —v- Hitt.
12. The key principles can be excised from the decisions of the Employment Appeal Tribunal in Iceland Frozen Foods and in British Home Stores. In (the later decision) Iceland, the EAT, after an extensive review of the authorities, emphasised that the “starting point” is always the words of the statute, and it went on;
“(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 employer’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
fails outside the band it is unfair.”5
13. In British Home Stores the EAT explained that the central point of the appeal before it was the “nature and proper extent” of the review to be carried out by a Tribunal when seized of a dismissal complaint based on an employee’s alleged misconduct. The EAT then set out its view of the proper approach:
“What the tribunal have to decide every time is, broadly expressed, whether the
employer who discharged the employee on the ground of misconduct in question
__________________________________________
Patrick Joseph Rogan —v- South Eastern Health and Social Care Trust 1200] NICA 47, at 15
Dobbin —v-- Citybus Limited [2008] N1CA
42
6 Iceland Frozen foods —v- Jones (EAT) [1983] ICR 17, at 24G
4
(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 really 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 of the
case. It is the employer who manages to discharge the onus of demonstrating
those three matters, we think, who must not be examined further. It is not
relevant, as we think that the tribunal would themselves have shared that view
in the circumstances. It is not relevant, as we think, for the tribunal to
examine the quality of the material which the employers had before them, for
instance to see whether it was the sort of material which would lead to the
same conclusion only on the basis of being “sure” as it is now said more
normally in a criminal context, or, to use the more old fashioned term, such as
to put the matter “beyond reasonable doubt.” The test and the test all the way
through, is reasonableness; and certainly as it seems to us, a conclusion on
the balance of probabilities will in any surmisable circumstances be a
reasonable conclusion”
14. The Lord Chief Justice adopted the principles set out in Iceland and British Home Stores and applied them to the facts of Rogan. Critically, he emphasised that in cases of alleged misconduct it is not for the Tribunal to assess the weight to be given to the evidence which was taken into account by the employer in deciding to dismiss:
‘The judgment as to the weight to be given to evidence was for the Disciplinary
Panel and riot for the tribunal. In this instance it appears that the tribunal
has strayed into the forbidden territory of making its own determination of the
evidence.”8
The Investigation
15. The Tribunal has been furnished with a statement of the main issues in the case. It Is understood that the Claimant makes only one criticism of the reasonableness of the investigation: that the failure to replicate the claimant’s procedure in opening documents was a fundamental omission from the investigation and rendered any decision relying upon it unfair.
_______________________________________________
7British Home Stores —v- Burchell (EAT) [1980) ICR 303, at 304C
80p cit at paragraph 26
5
16. Mr. McPeake gave evidence that he had issued a permission for the Claimant to use a computer at his interview with Ms. Quinn. It is clear that this exercise did not take place.
17. However, it is unclear how the failure to replicate the Claimant’s procedure could amount to a fundamental omission sufficient to vitiate the fairness of the dismissal. At his interview with Ms. Quinn the Claimant gave an account of the process which he engaged in which was broadly consistent with the Respondent’s suspicions about his conduct:
“The process was that I did a search; the search revealed the title of title of the document as the “View Metadata” was set at DARD: I clicked on the document; a screen appeared which contained a field showing “Access Control” on a drop down screen; I brought up “Access Control”, clicked “everyone”, then OK; the document opened; then this action was recorded on the audit log as changing access control to “everyone”.9
18. The key factor here was that the Claimant was admitting to using the “everyone” button to change the Access Controls when the Respondent had promulgated a clear and unequivocal prohibition on such actions.
19. It might be suggested that to replicate the process would have clarified once and for all whether a screen appeared which said “View Document: Access Denied.” As appears from Mr. McPeake’s findings he did not understand the Claimant to be saying that the message did not appear on the screen, but only that he hadn’t noticed it. In any event it is disputed that the Respondent was required in order to conduct a lair procedure to engage in an experiment with a view to demonstrating what Mr. McPeake already knew to be true. Plainly, it was not in the Claimant’s interests to admit to seeing such a message.
20. Hopefully, it is not too glib to make the point that for a Claimant who was maintaining that he did not look at all of the titles to the documents he was viewing, it is perhaps not surprising that he would say that he did not notice the message “View Document: Access Denied.”
The Finding of Misconduct
21. The report of Ms. Quinn found that there was sufficient evidence to support disciplinary charges against the Claimant.10 Mr. McPeake proceeded to charge the Claimant with misconduct following his consideration of the investigation report prepared by Ms. Quinn.
22. The factual basis for the
alleged misconduct is to be found in the allegations which were presented to
the Claimant by Mr. McPeake in correspondence dated 17
December2009:
_________________________
9Page 295(1)
10Page 179(1) sets out Ms. Quinn’s recommendations
6
“A recent investigation has discovered that you:
a.
Altered
the access and security controls on 113 records held within TRIM, which
you had not been granted “view” access to and then viewed these records. A
total of 81 records contained information about you, 11 related to other
individuals and 21 related to management and workforce issues that had no
relevance to you.
b. In altering the access and security settings of the 113 records and then viewing them, you breached various Departmental and NICS procedures, including the Code of Conduct and Data Protection legislation.
c. Misused the Departmental computer system by altering the access control records within TRIM”11
23.
Mr.
McPeake conducted a disciplinary hearing on the 8 January 2010 in order to
explore these allegations with the Claimant. At that hearing the claimant was
asked whether he was familiar with Records (NI) Guidance Nate No, 6. He
answered by stating that he was now aware of the Guidance Note but had not been
aware of it.
before the 9 March 2009.12
24. It
will have been noted by the Tribunal that Guidance No. 6 was available to the
Claimant had he sought to access It on the Respondent’s intranet site, The Guidance
provided,
“NB: if you (or your Power User! System Administrator) are setting “Access
Control” and/or “View Metadata” do NOT use the setting “Everyone”. “Everyone”
does not refer to everyone in DARD but to everyone in the entire NICS..
“In the future it is possible that some information will be shared NICS wide and that is the reason why this option exists on the system. In the meantime, do NOT use the setting “Everyone” unless specifically authorised to do so by senior management who are deliberately ensuring that the whole of the NICS are able to view the material in question (for instance in the case of an animal disease outbreak.”13
25. At the disciplinary hearing the Claimant was asked whether he accepted that he had changed the Access Controls, and that no one else could have done so. He said in response that “he himself had made the amendments.”14
_____________________________
11Page 240(3)
12Page 291(3) at paragraph 8
13 Page 60(4)
14
Page
294(3) at paragraph 18
7
26.
While
not disputing that he had changed the Access Controls the Claimant instead
sought to justify his actions by saying “any other member of staff within DARD
could have taken such action due to the Access Controls then in place.”15
When asked why he had persisted in changing Access Controls after the 4 March 2009,
he answered by saying that “he wanted to establish if the security problem was
confined to documents of which he was the subject matter.”16 When
asked why he had
proceeded to view documents, some of which related to other staff, the Claimant
answered by saying that he was seeking to understand the “extent of the problem
in relation to Access Controls and to determine whether his own personal data
was being appropriately protected.”17 He argued that he should not
have been able to open them. It was highlighted to the Claimant that the titles
of some of the
documents clearly described the content of the document; and that the evidence
showed that he had viewed the documents. The Claimant answered by saying that
“he had not been looking at the titles as his focus remained on the issue that
they could be opened and that the Access Controls could be easily changed.18
27. Arising out of what was said at the disciplinary hearing by the Claimant, and the written submissions provided by him, it fell to Mr. McPeake to make a decision. His starting point was to determine whether it was the Claimant who had changed the Access Controls. This was a straightforward issue because the claimant had admitted that he had changed the Access Controls and viewed the documents.19
28. That
being the case Mr. McPeake properly focussed his consideration on the following
question:
“Whether or not your actions were a breach of conduct and whether they were
justified and acceptable.”2°
29. In the analysis that followed Mr. McPeake fairly and accurately set out the Claimant’s defence to the allegations. It is clear from his correspondence that Mr. McPeake reflected upon the fact that the Claimant was enabled to change Access Controls because the documents did not have the appropriate controls in place. He also referred to the Claimant’s explanation that he “carried out a thorough audit through extensive searches to establish the extent of the problem.” However, having made himself aware of all of the evidence, it was entirely reasonable for Mr. McPeake to reach the conclusion that the Claimant’s explanation did not justify his actions. The key paragraphs are 12 and 13:
_______________________
15Page 294(3) at paragraph 18
16Page 294(3) at paragraph 19
17Page 294(3) at paragraph 20
18Page 295(3) at paragraph 21
19Page 338(3) at paragraph 6-8
20Page33a(3) at paragraph 8
21Page 338(3) at paragraph 8
8
“12. Whilst the department acknowledges that the access controls could have
been set more securely before you altered them, this did not entitle you to
view documents which you had not been granted permission to view, despite your
belief that you were fully justified in doing so. I note that when you
initially opened each record the, access control panel clearly stated, “View
Document: Access Denied” but that you continued anyway, changed the View access
setting to
“Everyone” and then viewed the majority of the documents. I could accept that
you did not notice the detail on screen and did not realise that you had been
denied access to view the documents ‘on a few occasions however you went
through the same process 113 times. You should not have set the View access to
“Everyone” without specific authorisation from senior management and in doing so
you further compromised the security of the documents by making them available to
all staff across the NICS who had access to TRIM.
“13. In conclusion, there is no dispute over the fact that you changed the access controls and then viewed the documents and this is evident from the TRIM record and audit logs and from’ your own admission. It is also evident from the number of documents involved, the period over which you carried out this activity and your unacceptable explanations that you were acting in an inappropriate manner. The access controls on the documents that you altered could have been set in such a way that would have eliminated any inappropriate access but I believe that you acted recklessly and exploited the access controls in order to view a range of documents that you clearly did not have permission to view so that you could see what if anything was written about you.”22
30. It is submitted that Mr. McPeake’s analysis is unimpeachable. It was entirely reasonable for him to conclude not only that the Claimant committed the acts (it being admitted that he had done so) but that those acts amounted to misconduct. Taking into account the fact that the Claimant had defied an unambiguous instruction not to use the “Everyone” setting, added to the number and nature of the documents which the Claimant viewed, it is difficult to see how Mr. McPeake could have reached any other conclusion.
31. It is further submitted that even if Mr. McPeake had left out of his reasoning the fact that he had concluded that “View Document: Access Denied” had appeared on the screen, there would still have been ample evidence to conclude, reasonably, that the Claimant’s actions constituted misconduct.
32. The fact that the Claimant was clicking on and viewing documents which related to management issues and private health and welfare issues of other colleagues would be enough for virtually any employer to reach a finding of misconduct.
33. The Claimant had access to the titles of the documents, though he has protested from time to time that he had not been looking at the titles.23 He did not need to open the documents, but he did so regardless of the rights or interests of other people. His justification, as
_____________________________
22 Page 359-340(3) paragraphs 12 and 13
23See for example at page 295, paragraph 21
9
appears from what he said during
Ms. Quinn’s detailed interview with him was a
determination to find documents relating to him:
“I had to see If there were any references to me in that document. They’d have had the proper controls on it if they didn’t want me to read it. I was opening documents to see if they were about me”24
34. At Ms. Quinn’s interview with the Claimant she took him over the titles of all of the documents which did not contain Mr. Spence’s name. Even where the title to the document clearly spoke of a private and confidential matter the Claimant changed the Access Control, clicked and viewed:
“MQ: Referred to Record No DA1/09/39244 — Tom Tate — OHS Report — Tom Halton — Lynne
Martin—11/02/09.
“JS:
OHS—I have been dealing with OHS. I asked them to look at OHS reports, there
was an OHS report. It’s a shame and disgrace that you have a list of documents
not properly
protected by DARD”25
35. The explanation itself is of course doubtful — did the Claimant really think there could be a reference to him in such a document? Even if some credence can be given to this kind of thinking, it is contended that the Claimant could not reasonably have understood or believed that viewing documents such as the health records of a colleague could be justified on the basis that they might contain a reference to him because he had also been dealing with OHS.
36. It is submitted that no employee could reasonably believe that they were entitled to behave in this way just because the weaknesses of the system facilitated them in doing so. It might be asked rhetorically, on what basis did the Claimant consider that he had authority to “audit,” as he put it, a number of records, whether to check for references to him or to confirm the extent of the security issue? He had no such authority and he must have known that rather than trampling on the rights of others by going into flies containing private documents, the proper thing to have done would have been to make an immediate report. Mr. McPeake was undoubtedly right to conclude,
‘You had no right to access and examine the records in the manner that you used.”26
37. The other lynchpin in the analysis of Mr. McPeake was his finding that the effect of changing the View Document control to “everyone” gave access to all staff across the entire NICS. It is right to acknowledge that the Claimant has always refused to accept this description. The Claimant’s outward position has been and remains that notwithstanding the fact that he
____________________________________________
24Page 296(1), answer to question 46
25 “ Page
298(1)
26Page 339(3) paragraph 10
10
change the View Document Access control to “everyone,” this was irrelevant if
the View Metadata is set at DARD 27 He claims that if View
Metadata was set at DARD other
employees around the Northern Ireland Civil Service would not know that a
document existed, and that therefore his use of “everyone” was inconsequential.
.
38. Mr. McPeake and Mr. Maxwell each gave evidence to explain the error of the Claimant’s position. Mr. Maxwell explained that if a user can view a document then he can view the metadata, in that the View Document setting overrules the other restrictions. He described the system as working on a “hierarchical” basis, and “logically,” so that if View Document is set to “everyone” (which is how the Claimant left it) it follows that it can be viewed and read by everyone, and that any restriction contained within View Metadata eg. limiting the View Metadata to DARD, ceases to be effective.
39. In
support of his analysis the Claimant placed great store by the fact that the
handout provided to him at training in September 2007 said, “If View Metadata
access is denied to a user/group then the other Access Control Permissions
become irrelevant.”28 it is important, however, not to consider
documents such as this in a piecemeal fashion because within the
same page of the document is contained the message in heavy bold type, “NB
Setting Access Controls to Everyone in TRIM means everyone in every
Department.” Moreover, guidance No. 6 (set about above) also emphasises in
stark terms the consequences of using
“everyone”.
40. It is submitted that much of the debate surrounding the meaning to be given to the handout document is superfluous. It was clear from the Claimant’s answers in cross-examination that while he had retained possession of the document after the training, he had not consulted it before the 9 March 2009, just as he did not consult any document or any person as he “dabbled in the dark” His evidence was not seeking to suggest that he was guided by this document or anything or anyone else when he engaged in the impugned conduct.
41. It is submitted that the only relevance of the document may be to assist the Tribunal in determining whether Mr McPeake did in fact believe and had reasonable grounds for believing that the Claimant’s conduct in changing the Access Controls using the “everyone” button had the consequence of opening access to the entire NICS.
42. It is
submitted that despite the stubbornness of the Claimant’s position it is
scarcely credible that two senior employees of a Government Department would
seek to maintain such a position under oath if they knew it to be untrue. It is
notable that the Claimant has
understood the Respondent’s position on all of this since the disciplinary
hearing and yet neither at the Civil Service Appeal Tribunal nor before this
Tribunal has besought to call evidence which would undermine the Respondent’s
explanation of the implications of the use of the “everyone” button.
_____________________
27Claimant describes his understanding at footnote 9 at
page 295(3)
28Page 8(4)
11
The Finding of Gross Misconduct
43. Having
established that the Claimant was guilty of misconduct Mr McPeake had to
consider
where that misconduct fell within the terms of the Respondent’s disciplinary
procedures
was it minor, major or gross misconduct?29
44. The
Respondent’s disciplinary procedures provide that “In cases of a very serious
nature,
Departments have the right of summary dismissal without notice or warning.”30
A number of
examples of gross misconduct are included in the procedures at Annex 1, including,
misuse
of computer systems which is defined as “any wrongful or unauthorised access to
IT systems
or other breach of IT security.”31 It was frankly ludicrous for the
Claimant to seek to maintain
before the Tribunal that he was not aware that his actions could amount to
misconduct.
45. Mr.
McPeake determined that the Claimant’s conduct constituted gross misconduct. He
set
out the following reasoning:
“Under
the N1CS Disciplinary Procedures, Section 6.03 of the NICS Staff Handbook I believe
your actions to be gross misconduct of a serious nature. I have reached this
conclusion
because of the number of policies and procedures that you breached over a
prolonged
period. You compromised the confidentiality and integrity of the department’s
information
system, TRIM, and as a result of your actions a number of documents of a
personal and
sensitive nature were made available to all staff across the NICS. In doing so
you invaded the
privacy of others and management and you also exceeded your rights in relation
to your
own records.
“I have decided that you should be dismissed....”32
46. While
giving evidence before the Industrial Tribunal Mr. McPeake recounted the
several
aspects that led him to the view that the Claimant’s behaviour amounted to
gross
misconduct: the inconsistencies between the explanation he gave to HR Connect
(Ms.
Quinn) and what he said at disciplinary hearing; the number of documents that
were
involved; the fact that several documents contained sensitive information
relating to others
and some documents related to management issues; the prolonged period of time
over
which the access changes were made; that the actions constituted reckless
behaviour; and
that he had compromised information relating to others.
47. Again,
it is submitted that the conclusion that the conduct amounted to gross
misconduct
was one which it was entirely reasonable for Mr. McPeake to arrive at. it would
have been
one thing for the Claimant to restrict his unauthorised activities to documents
which were
pertinent to him, but Mr. McPeake was entitled to take the view that the
conduct was
rendered much more serious because amongst the other factors mentioned, here
was an
_________________________
29The disciplinary procedures are to be found at page 185(1)
30Page 192(1)
31Page 196(1)
32Page 341(3), paragraph 2
12
employee who; when the opportunity arose, could not be trusted not to access
and view documents relating to management issues and the private affairs of
others. The fact that he repeated his offence on a number of occasions, over a
lengthy period of time and then left the documents available to “everyone”
plainly and justifiably copperfastened the conclusion that this was misconduct
at the very serious end of the spectrum.
The Decision to Dismiss
48. It is
clear that Mr. McPeake gave careful consideration to the appropriate penalty.
As
appears from his reasoning he didn’t kneejerk to a finding of dismissal without
some
considerable thought:
“In deciding what penalty to impose I have considered if there are any
mitigating factors present and how they should be taken into account. As I have
already mentioned,
throughout this investigation you have made the case that the proper access
controls were not in place and that it was the negligence of others that led to
your information and that of others not being properly protected and to you
being able to take the actions that you did. I have also already stated that the
Department has acknowledged that the access controls could have been set more
securely but I do not consider that this justified the inappropriate actions
that you took. I am not aware of any other mitigating factors nor did you put
forward any others.
“I have also considered the full range of disciplinary penalties that are available...I do not consider a downgrading or a ban on promotion to be suitable because it would not regain the Department’s confidence in you and it does not reflect the seriousness of the case.
“I have concluded that the gravity and nature of your offences as outlined in this letter are such that, regretfully, your behaviour warrants dismissal.”35
49. In his evidence before the Tribunal Mr. McPeake further explained the considerations which he took into account when addressing the question of sanction. He told the Tribunal that he “did consider each and every penalty’ but that he did not apply a lesser penalty because of the gravity of the misconduct. He went on to say that the Claimant had lost the confidence of the Department.
50. It is
argued (implicitly) on behalf of the Claimant that apart from anything else the
Claimant’s clear disciplinary record and length of service were sufficient
mitigation to justify a reduced
penalty.
51. It is clear that Mr. McPeake as establishment officer would have been aware of those facts from the records. However, he did not recognise them as being sufficient mitigating factors given the seriousness of the misconduct.
___________________________
38Page 341(3)
13
52. There may be cases in which a clear record and long service could and perhaps should mitigate the penalty. It cannot be said, however, that where the misconduct is viewed by the employer as particularly serious that such factors would provide sufficient mitigation to reduce the penalty.
53. Indeed there is a respectable argument which says that an employee with long service ought to have known better than to behave in the way that he did, so that long service becomes an aggravating feature of the case.
54. In the
circumstances Mr. McPeake was acting entirely reasonably in not regarding long
service and a clear record as being factors of sufficient weight as to affect his
view of the
appropriate sanction, it is submitted that taking all of the evidence which was
before Mr. McPeake into account, this is a clear case in which the dismissal of
the Claimant fell within the band of reasonable responses.
Other issues
Protected Disclosure
55. The Claimant has maintained that when on the 6 March 2009 he informed the Information Commissioners Office (ICO) about his concerns with the security of the TRIM system he was making a “protected disclosure”. He has sought to make the case that the reason why disciplinary action was taken against him was solely (or perhaps principally?) because he had made that protected disclosure. In particular he alleges that as he had not engaged in any culpable or blameworthy conduct, the only explanation for the decision to terminate his employment must lie with his complaint to the Commissioner’s Office. He complains, through his counsel’s questions, that he has been “scapegoated”, whereas in fact others “higher up the food chain” in IMB ought to have been held to account.
56. It is
not disputed that the Claimant’s correspondence with the ICO could constitute a
protected disclosure. However, if the analysis set out above is correct — and
fundamentally, if the Tribunal accepts the evidence of Mr. McPeake, it will be
led inexorably to the
conclusion that the fact that the Claimant had raised his concerns externally
with the ICO had nothing whatever to do with the decision to instigate a disciplinary
process. The trigger for taking that step was always the fact that there was
clear evidence to demonstrate that the Claimant had acted in a manner which
contravened the disciplinary code.
57. Mr. McPeake was invited to address these issues head on in cross examination. He was adamant that the complaint made to the ICO was not a factor he was concerned about let alone took into account. He denied that the Department was embarrassed by the complaint. He made it clear that even if there was a concern within Information Management Branch that the Claimant’s complaint had opened them up for criticism. This had no impact on him. He said that IMB had no role in the disciplinary process, and that the decision to proceed to disciplinary and to dismissal was his alone to take.
14
58. It is
submitted that an employee cannot escape the consequences of his actions if those
actions are culpable; by turning his activity into the occasion for a protected
disclosure.
Nobody disputes that the Claimant was entitled to raise his legitimate concerns
with the ICO, but those concerns should not be permitted to mask his misconduct
in exploiting the weaknesses in the system, by breaching the rule on the
“everyone” button and by viewing documents whose subject matter had nothing
whatever to do with him
The Grievance
59. The Claimant
issued a grievance complaining about the storage of documents relating to him.
Mr. McPeake explained to the Tribunal that he believed that it would not be
possible to
deal with the grievance without straying into the disciplinary matter. He felt
that to advance a grievance investigation could damage or influence the fair
conduct of the disciplinary process.
60. It is submitted that in the circumstances Mr. McPeake’s decision was an entirely reasonable and justifiable management decision. Management must be allowed to exercise their discretion to arrange for the conduct of internal processes and investigations in a manner which can best address the issues at stake. Unless, it can be said that the suspension of the grievance caused an unfairness to the Claimant which in its nature contaminated the disciplinary process, these are not decisions which the Tribunal should second-guess.
61. It is submitted that it cannot be said that the failure to hear the grievance led to any unfairness in the disciplinary process, or that but for the failure to progress the grievance the Claimant would not have been dismissed. The point of the grievance, in essence, was to arrive at an understanding of why the TRIM system was not as secure as it should have been. However, in the context of the disciplinary process the Claimant’s complaint in this regard was accepted.34
62. What was scrutinised within the disciplinary process was whether, even allowing for the failures in the system, the Claimant’s actions amounted to misconduct. It can be seen from the earlier analysis that Mr. McPeake was circumspect in addressing these important issues.
Witness Statements and the Investigation Report
63. The Claimant was not provided with a copy of the Investigation report prepared by Ms. Quinn, and nor for that matter was he given copies of the records of interview prepared by Ms. Quinn with witnesses such as Mr. Maxwell. The Claimant alleges that the failure to provide him with these documents rendered the dismissal unfair.
_________________________________
34The Department has confirmed and acknowledged that before you
altered the records the access controls were set at DARD and this enabled you
to amend the controls that others had placed on the documents. Following a
review by Information Management Branch (IMB) the facility that allowed end users
to amend the access controls was removed and IMB are continuing to
establish why the access controls on the documents in question were not set
appropriately and whether further action against those involved is necessary.”
Page
338(3)
15
64. It is not enough for the Claimant to point to documents and to say the failure to provide them led to a fundamental unfairness. He must also explain what it is about the failure to provide the documents which amounted to an unfairness.
65. In
fact the Claimant was provided with a considerable amount of documentation, and
crucially, this documentation contained the records of his impugned conduct
which were
relied upon by Mr. McPeake to find that he was guilty of misconduct. The
provision of those documents enabled the claimant to satisfy himself (it there
was any doubt in his own mind, although it is clear that there wasn’t) that he
was the person who had changed Access Controls by using “everyone” and
proceeded to view documents, for which he did not have view access prior to changing
the Access Controls. Those documents contained the essence of the case against
the Claimant .
66. It is relevant to ask in circumstances where there was no dispute about the fact that the Claimant was responsible for these actions, what unfairness did he suffer by the withholding of the investigation report? At the heart of the disciplinary case which Mr. McPeake had to address was an assessment of whether the admitted conduct was blameworthy in the sense of it having breached the Respondent’s disciplinary code. The provision of the investigation report did not deprive the Claimant of any information which might have been relevant to that assessment.
67. Natural justice dictates that the Claimant should know the case against him where allegations of misconduct are made. This was emphasised in Bentley Engineering -v- Mistry where it was held that not only should an employee be afforded the opportunity to state his case, but that he must also know the case being made against him so that he can respond in a meaningful way.35
68. In Louies —v- Coventry Hood and Seating it was held that where an employer places heavy reliance upon the statements of witnesses it risks unfairness if the accused employee is not given sight of those statements or appraised in specific terms of the content.36 This approach was supported by the EWCA In Hussain -v- Elonex plc where it was held that there is no hard and fast rule that an employee must be shown statements evidencing his misconduct (citation to follow).
69. It is submitted that it is clear that in the instant case that no unfairness was caused to the Claimant by the failure to provide him with either the report or the witness statements. The Claimant was provided with the documents which contained the evidence against him, and therefore he knew the case which he had to meet. He was given ample opportunity to account for his actions and to attempt to meet the case against him. This was not a case which depended upon the content of witness statements. There was no breach of natural justice.
__________________________
35[1979] ICR 47
36[1990] ICR 54
16
70. For the avoidance of doubt it is disputed that there has been any breach of the LRA Code with regard to making available to the Claimant the evidence which grounded the case against him.
The Steria Report
71. The
Claimant made requests in advance of the disciplinary hearing for access to the
detailed audit log which the service provider (Steria) was capable of
constructing, and which detailed all Access Codes and changes to the documents
which the Claimant had accessed. The Steria document was provided to the claimant
after the disciplinary hearing but before Mr. McPeake had issued his decision.37
The Claimant then made a written submission with
regard to the document in an email to Mr. McPeake38
72. In the submission the Claimant emphasised that the vast majority of the documents (91 out of 133) had their Access Controls for View Metadata and Modify Record Access set as DARD. However, this point had already been accepted by Mr McPeake in the course of the disciplinary hearing, and was again acknowledged by him in his disciplinary findings:
“The Department has confirmed and acknowledged that before you altered the records the access controls were set at DARD and this enabled you to amend the controls that others had placed on the documents.”40
73. Therefore, to the extent that it is suggested that the failure to provide the Steria documents earlier constituted unfairness, this is disputed. The failure to provide the Steria documents earlier did not make one iota of a difference to the case which the Claimant had to meet.
74. In his
submission at page 329(3) the Claimant sought to argue that the Steria document
established that 42 documents were left exposed by those who had looked at the
documents after him. He argued that for those 42 documents,
“DARD
staff saving them to TRIM left the View Metadata control as everyone which
meant
that all staff in the Northern Ireland Civil service were given permission/authority
firstly to know that my personal documents existed and secondly they were given
the permission/authority to change the access controls and view the document
because the Modify Record Access was also set at Everyone.”41
75. In
essence the Claimant was arguing that there were people in senior positions in
DARD who were more culpable than him. However, this was investigated and found
do be
demonstrably untrue.
________________________________
37The Steria document can be found at pages 11-26(5)
38Page 329(3)
39Page 292(3)at paragraph 13
40Page 338(3), at paragraph numbered 5
41Page 329-330(3)
17
76.
Mr.
McPeake gave evidence to the Tribunal that he referred the issues raised in
this email to Mr. Maxwell. In turn Mr. Maxwell gave
evidence to the Tribunal that he examined these
issues and told Mr. McPeake that the Claimant’s contention was “utter
nonsense.”
77. Mr. Maxwell illustrated his point by referring specifically to one of the 42 documents identified by the Claimant, He pointed to document 9 at page 331(3), and cross referenced it to the record for the same document listed in the Steria document at page 29(5). He explained that the Claimant was right to say that Modify Record Access was set for “everyone” but he was wrong to say that View Metadata had been set for “everyone”. He explained that leaving Modify Record Access at “everyone” did not allow access to the whole NICS because View Document was limited to a discrete group within DARD and View Metadata was based on the container. Mr. Maxwell explained that the Claimant was wrong to say that Mr. McCartney’s actions had left the document accessible to the whole of the NICS because the controls put on View Access and View Metadata meant that the document could not be seen beyond that limited group. Mr. Maxwell went on to say that this was the position for all of the 42 documents identified by the Claimant.
78. Mr.Maxwell contrasted Mr. McCartney’s handling of the documents with that of the Claimant. The Tribunal will have noted that whereas Mr. McCartney had locked down View Document to a limited group, the Claimant had left the View Document at “everyone.” Mr. Maxwell explained that in doing this “effectively the document can be seen by everyone in the civil service.”
Witnesses
79. The Claimant has sought to maintain that the disciplinary process was unfair because he had been prevented from speaking to anyone about it. In support of this contention he relied on what was said to him by Mr. McKendry on the 31 March 2009 when he was told that his conduct would be the subject of a disciplinary investigation:
“At this point, neither I, nor anyone else in the Department, can discuss the investigation with you. HR Connect will be in touch with you and you will have the opportunity to explain your actions, ask questions and put forward your position during an interview with them.”42
80. It is submitted that the caution issued by Mr. McKendry is not unusual in the context of an imminent disciplinary investigation. The words chosen were clearly intended to deliver the message that the proper place to discuss the allegations which were to be made against the Claimant was in the context of the formal procedures of the investigation, in order not to prejudice the Claimant or any other person. The Claimant sought to maintain that he reasonably believed that the words used constituted a bar on him talking to potential witnesses and effectively defending his position. It is submitted that if this was his belief it was not reasonably held.
_________________________
42 Page 206(1)
18
81. The claimant
knew, for example, that he had a right to be represented during the
investigation.43 However; he declined —voluntarily—to engage that
rigbt: “I’ve chosen not to be accompanied at this stage anyway.”44 While
he went on during his interview with Ms.
Quinn to complain about not being allowed to speak to anyone, the reality of
the situation was that he knew he had a right to speak to a representative but
he declined to exercise that right.
82. Similarly,
at the disciplinary hearing stage, the Claimant was advised of his right to
be accompanied by a work colleague or a trade union representative.45
It is submitted that
knowing of these rights the Claimant must also have known that he would be free
to speak to that work colleague or that trade union representative about the case
being made against
him, and to explore with them what might be put forward in defence of the
allegations. This would necessarily have included a consideration of whether
witnesses could or should be
called. At the very least, reading this correspondence from Mr. McPeake ought
to have caused the Claimant to think that if he was entitled to speak to a
representative, perhaps he should inquire whether he was entitled to speak to
anyone else and bring forward
witnesses.
83. In his
evidence Mr. McPeake advised the Tribunal that he disabused the Claimant of his
interpretation of Mr. McKendry’s direction: “I made it perfectly clear to him
that his
interpretation was incorrect”
84. It is submitted that it ought to have been quite clear to the Claimant that if he had witnesses to call he was at liberty to call them. Indeed if the point is a serious one and if there was a doubt the Claimant could simply have asked for clarification. Of course we have not been given the identity of any witness the Claimant would have liked to have called, or even the nature of the evidence he would have liked to have called. If there is substance in the point in the sense that there is evidence available which would tend to show that the conclusions reached by Mr. McPeake were unreasonable, the Claimant would have been perfectly at liberty to bring the evidence before the Tribunal.
85. For the avoidance of doubt it is disputed that there has been any breach of the LRA Code with respect to the right to call witnesses.
Should Mr. McPeake and Mr. Trelford have recused themselves?
86. The
point is made on behalf of the Claimant at this Tribunal that Mr. McPeake
should not have taken carriage of the disciplinary hearing, and that Mr.
Trelford should not have
conducted the appeal hearing.
87. It Is submitted that just because Mr. McPeake was himself the subject of one of the Claimant’s grievances does not afford a strong basis for saying that he was incapable of
_________________________
43Page 190(1) at 4.1.3
44Page 267(1)
45Page 252(3)
19
dealing
with the disciplinary process fairly. Mr. McPeake made it clear that he is
regularly
the subject of grievances and appeals; he does not take the criticisms
personally but
processes them on a professional basis. He emphasised that “his conscience was
clear and
that he “made the decision on the basis of the reasons set out in the letter.”
88. Likewise the Claimant alleges that Mr. Trelford should have recused himself because he had been named as a co-respondent in an Industrial Tribunal complaint raised by the Claimant, It is notable, however, that at the appeal Mr. Trelford made it clear to the Claimant that the appeal did not have to proceed in front of him. He referred to the option of the appeal being heard by Mr. Lavery, However, the Claimant insisted that the appeal should proceed that day before Mr. Trelford.46
Consistency
89. It is accepted that a dismissal may be held to be unfair on the ground of inconsistency where the employer has on other occasions dealt more leniently with similar misconduct. As the editors of Tolley’s Employment Law Handbook highlight after their consideration of the authorities, “this should only be the case if the circumstances were strongly similar in the two cases.”47
90. It is suggested in the statement of issues that the treatment afforded to the Claimant was inconsistent (by comparison with what, or who it has to be asked?). It is further suggested that similar breaches of security were not treated as disciplinary. It is not clear, because it was never put, just who else should have been disciplined and why. It is unclear to the Respondent how the Claimant intends to develop these issues and at this stage of the submissions no further useful comment can be made.
Remedy
91. It will be useful in these submissions to cover for the possibility that the Tribunal might find against my primary submission that the dismissal was not unfair. The Claimant seeks reinstatement or reengagernent in the event of a finding of unfair dismissal. If it reaches the stage of considering remedy the Tribunal will note the provisions of Article 150 of the Employment Rights (NI) Order:
150. — (1) In exercising its discretion under Article 147 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account—
(a)whether the complainant wishes to be reinstated,
(b)whether it is practicable for the employer to comply with an order for reinstatement, and
(c)where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.
_____________________________
46See record of appeal at pages 356-357(3)
47Trolleys Employment Law Handbook 2010, page 1145
20
92. The key provision is Article 150(1)(c) Harvey provides the following guidance:
“[2400-2410]
if the employee has caused or contributed to his dismissal this factor must be
taken into account by the tribunal when considering reinstatement or
re-engagement. Obviously it is going to be only in the most exceptional of
circumstances that a tribunal will order
reinstatement of an employee who has contributed to the dismissal in a
blameworthy sense; for why should he then be treated as if he had never been
dismissed? But in these
circumstances an order for re-engagement may sometimes be appropriate, with the
tribunal reflecting the employee’s fault in the terms on which re-engagement is
ordered.”48
93. It is submitted that this is not an appropriate case for reinstatement or re engagement. It is submitted that for all the reasons set out above the dismissal was entirely fair, but if the Tribunal finds that there was some unfairness in the procedures, for example, there remains strong evidence of the Claimant’s culpability which would militate against an order for reinstatement or re-engagement.
94. In his
decision dismissing the Claimant Mr. McPeake reflected the fact that the
Respondent’s confidence in the Claimant had gone. It is submitted that this
conclusion does not
exaggerate the position but is entirely consistent with a reasonable employer’s
view of an employee who had breached the employer’s trust in him by viewing documents
relevant to management issues and others. This behaviour was at the heart of
the decision to dismiss the Claimant, and it is clear that this behaviour
caused or contributed to the dismissal to the extent that it would be unjust to
permit the Claimant to come back into that employment again.
95. It is
accepted that in a suitable case an order for re-engagement might be made in a
way which reflects the degree of contributory fault. It is submitted that this
is not a suitable case. It is submitted that the Claimant’s hesitancy in giving
evidence with regard to reengagement
suggests that he would be reluctant to accept re-engagement unless it was
ordered on the same terms and conditions as he enjoyed prior to dismissal.
Moreover, and for the same reasons set out above, the degree of the Claimant’s
blameworthy behaviour involving as it did a breach of trust, should be
sufficient to lead the Tribunal to the view that it would be unjust to order
re-engagement.
96. Finally, if the Tribunal is of the view that compensation is an appropriate remedy it is submitted that there ought to be a substantial reduction for contributory fault. A reduction of 100% would not be inappropriate on the facts of this case.
Martin Wolfe BL, 8 October 2010
___________________________________
48Harvey at DI 2400
Spence v Department of Agriculture and
Regional
—______
Development for Northern
Ireland
1 Introduction
Mr Spence, a long serving civil servant, employed by the Department of
Agriculture and Regional Development (“DA.RD”) with an unblemished disciplinary
record was dismissed for gross misconduct after he reported to his managers his
grave concern that he could access confidential documents from his terminal at
work.
These
documents were stored in and accessed through TRIM the new NICS
wide document management system designed by Steria. TRIM was designed so that
the access of users can be restricted: “TRIM Access Controls are put
in place to prevent unauthorised access, whether deliberate or accidental, by
others”. Controls like modifying and viewing documents can be modified and set
to certain groups.
The
circumstances of Mr Spence’s dismissal arose because of a serious error of this
system either at the time of set-up or through a failed
synchronisation:
the result of this error was that access controls were improperly set so that
end-users, those with the lowest security access were able to view documents
which should have been properly secured.
Since TRIM is central to the circumstances of the case it is essential to understand its purpose and scope. Authorisation to view documents within TRIM is defined by the controls set on that document.
“Each person within the NICS
will he assigned a role within TRIM which
dictates what he/she can and cannot do in terms of TRIM functionality”1
____________________________________
1 02-376 in Appendix
19 of the HR Connect Report
The lowest level is Mr Spence’s
category, the end-user category
“which will provide (the end—users) with sufficient privileges
to carry out
day-to—day
activities within TRIM”2.
Above end-users are power users, and above power users is the level of Systems Administrators, Departmental Administrators and Day-to-day Administrators. At this high level responsibilities include “changing access controls on records and containers”. Mark Maxwell was a member of this upper category. He gave evidence to the tribunal. He was the man responsible for the administration of TRIM within DARD at all relevant times.
By accident or neglect the access controls on many documents were set incorrectly to a wide group. In this way authorisation was given to end-users such as Mr Spence to view and access the documents.
‘This error which potentially exposed an estimated 500,000 documents including ministerial papers was not identified by those charged with ensuring security of the system. Mr Maxwell described this as a “serious security issue”.
No action whatsoever, as far as the tribunal is aware, has been taken against any member of staff entrusted with the administration of the system which contained this error. The IT personnel responsible for setting and controlling the initial access controls included Mark Maxwell of the Information Management Branch (“IMB”) and Alan McCartney of Corporate Services.
It is the notes of Mark Maxwell and Alan McCartney which are the basis for the disciplinary proceedings against the claimant. John Spence, an end-user
_______________________
2 02-377
with no computer expertise, who discovered this serious flaw and reported the matter, has been dismissed.
Mr Spence was unaware that his actions were misconduct and could lead to disciplinary action. During his 24 and a half years of service there was nothing to suggest that he had ever acted dishonestly or inappropriately. When he discovered that documents which should have been secured by TRIM administrators were accessible he started to establish the extent of the problem. He opened dozens of documents which had been left accessible When he realised that there was a serious problem he reported to his managers3:
Whilst working on TRIM I became aware that there were a series of documents stored with very sensitive personal information relating to myself and my contacts with the above branches. I thought at first that these had appropriate TRIM Access Controls in place but on further examination I am ALARMED to find that this is not the case. These documents are easily accessible to ALL who have access to TRIM!
The documents and containers are labeled in such a way as to easily allow my identification to he known and the contents to be freely viewed.
I view this as a very serious
infringement of my rights under the Data
Protection Act through lax security of my personal documents and
information on ongoing private matters with management by staff in both
SDG and Personnel Management Branches.
Mr Spence acted, as he had always done, with openness and honesty. He was assured the matter would be looked into. He continued to check the
____________________
3[01-201]
extent of the flaw until he was instructed by his line manager to stop4. He did so immediately.
The flaw he had discovered was serious and fundamental. Mr Maxwell explained that to his knowledge the proper guidance on setting access controls in Records NI was followed, meaning that “Modify Record Access” would have been restricted to DARD power User Profile (DIM) Administrator profile and DARD day to day administrator profile. He considered that a power user had been using specific privileges to alter access. The reality was Mr Spence, with the lowest form of access had demonstrated that a wide range of documents were easily accessible.
The breach of security protocols could have been exploited. Sensitive documents including a ministerial document could have been accessed and indeed altered. If Mr Spence had been dishonest, if he had had ulterior motives, if he had been secretive then this flaw may have gone unnoticed and the personal and confidential data of thousands of civil servants, departments and agencies could have remained compromised.
Mr Spence raised a grievance that the department had failed to protect his personal data. The respondent failed to comply with its grievance procedures. A grievance meeting was not arranged within 10 working days. There was not a resolution within 28 days. In fact, there was never a grievance meeting.
The response of the department was to subject Mr Spence to a protracted investigation, then disciplinary process and dismissal. At all times Mr Spence believes he had acted with honesty and integrity. He was astounded and shocked when he was dismissed.
________________
4[01-206]
The
relevant legislation is set out in the Schedule. The claimant contends that
this dismissal was unfair in the circumstances, and that he suffered a
detriment and was dismissed on the grounds of his
protected disclosure.
2 Whistleblowing dismissal
The disclosure made by Mr Spence on 9th March 2008 was a protected disclosure. Mr Spence had raised a genuine concern about a perceived breach of legal data protection. obligations. He raised it with his line manager.
It was suggested on behalf of the respondent that there was an ulterior motive for the claimant’s activity: that there was a surreptitious element. This suggestion must be placed in the context of a man who openly and without prompting made a disclosure that he had been able to access not only his own documents, but documents relating to other people. He continued to explore the extent of the problem, and when directed to stop he did so.
It is submitted that these are the acts of a man who is acting in an open and transparent manner, and a man who had no appreciation that what he was doing was an act of misconduct.
The dismissal clearly arose as a result of Mr Spence’s accessing the improperly secured documents. The respondent contends that it is legitimate to distinguish between the disclosure and acts of misconduct surrounding the disclosure and as such the disciplinary process (which would otherwise be a detriment) and the dismissal are not protected by articles 70B and 134A.
If the respondent is incorrect then the dismissal, is automatically unfair and the claimant has suffered a detriment from 31 March 2009 to the date of dismissal.
The wording of 70B and 134A are different: the detriment provision requires that the detriment alleged is “on the grounds of’ the protected disclosure, whereas the dismissal provision specifies “if the reason that”.
The Court of Appeal in England has held that the PID provisions protect disclosure, not the events leading up to the disclosure. This is not binding on the tribunal.
It is distinguishable on the facts. That case involved a school teacher who deliberately hacked into a new school network to prove its vulnerability. The teacher was aware that what he was doing was forbidden before he did it: he was disciplined (not dismissed) and then, he resigned.
A tribunal needs to examine very carefully a disciplinary process which is imposed upon. an employee who has made a protected disclosure and which concerns the circumstances in which he came by the knowledge which is the subject of his disclosure and in circumstances where the employee is unaware that what he is doing is misconduct.
It is a matter of evidence for the tribunal to assess whether the reason for dismissal was that a protected disclosure had been made or by reason relating to Mr Spence’s conduct.
3 Whistleblowmg — detriment
It was accepted by the respondent
that a protected disclosure had been made.
Mr Spence’s grievance relating to the protected disclosure was not
progressed in accordance with the contractual policy.
He was never invited to a grievance meeting.
The grievance was never resolved.
____________________
5Bolton School v Evans[2007] ICR 641 EWCA
A failure to investigate a grievance which amounts to a disclosure is a detriment6.
3
Unfair Dismissal
There are basic points which must be considered in determining whether or not a
decision to dismiss for misconduct is fair or unfair:
(a) whether the employer made the employee aware that the conduct complained
of would be regarded as misconduct, and
(b) whether the employer made the employee aware that the misconduct may result in dismissal
Q1] Did the employer make the
employee aware that the conduct complained of was regarded as
misconduct?
Simply put it is unfair and unreasonable to dismiss someone for conduct which
they were unaware was misconduct. This principle is set out in the LRA Code of
Practice on Disciplinary proceedings.
54 Rules should be specific, clear and recorded in writing. They also need to he readily available to employees, for instance on a noticeboard or, in larger organisations. in a staff handbook or on the Intranet. Management should do all they can to ensure that every employee knows and understands the rules, including those employees whose first language is not English or who have trouble reading. This is often best done as part of an induction process.
The claimant contends that the respondent has breached this section of
the Code and acted unfairly in 3 respects, namely:
1.1 there was no specific clear rule recorded in writing
1 .2 what rules existed were no readily available to employees, and
_______________________
6Lingard
v HM Prison Service ET 1802862/04, 16 December
2004
1.3
management failed to ensure that every employee knew or understood the rules
1.1 Lack of a clear rule
The investigation relied on a breach of “various Departmental and NICS
procedure, including Code of Conduct and Data protection legislation; and
misuse of Departmental computer systems”
Mr Maxwell also stated that it was IMB’s understanding that the “everyone”
button could only be used by a person with access to the document, but that
they had learned that anyone else who could see the metadata relating to a
record could use it7. This admission has two repercussions for the
process;
(1) it shows that even IMB were unclear about the permissions which they had granted
(2) the permission granted to end-users was in excess of that which was envisaged
This matter was considered in the investigation report which at 3.1.1108 and following stated:
Mr Spence has claimed (paragraphs 3.1.79 to 3.1,81 and 3.1 .83) that for
records on which he changed the security and access
controls, the ‘Modify
Record Access’ was set at DARD and
therefore he
believed that he, as a DARD official, could legitimately change
the access
controls. The investigation found this claim to be
substantiated in that the evidence shows (paragraphs 3.1.88
and 3.1 .90) that
the authorisations (‘Modify Record Access’) for the records supporting the allegations of
misconduct against Mr Spence were sitting at
DARD. The evidence
collected during the
____________________
7[01-131]
8[01-157ff]
investigation indicated (paragraphs 3.2.9, 3.1.10, 3.1.32, 31.34, 3.1.51 and 3.1.52) that this could have been due to the possibility that the security and access controls on some documents held on TRIM defaulted to the baseline setting of ()AR-D.
3.1.111 The investigation concluded (paragraphs 3.1.8, 3.1.34. 3.1.91, 3.1.92, 3, 1.96, 3.1.98 and 3.1.99) that authority to alter the access/security controls on information/documents held within TRiM is restricted to those who are named in. the ‘Modify Record Access’. The evidence shows that, for the records on which Mr Spence changed the security and access controls, the permissions were sitting at DARD (paragraph 3.1,109) so he technically had legitimate authority to make the changes, despite views expressed by witnesses (paragraphs 3.1.40, 3.1,88 and 3.1.93) that the ability to do something does not necessarily make it acceptable.
3.1.113 It was established from the evidence collected during the investigation that whilst Mr Spence did have authority to change the access and security controls on the records provided in support of the allegations of misconduct against him, by virtue of the access permissions in place on them at the time the changes were made, he contravened procedural guidance in the manner in which he made the changes.
The investigator then moves on to
rely on Guidance Note 6. Mark Maxwell referred to “DARD Guidance Note No. 6 -
Guidance on
Setting Access
Controls in Records NI” during his interview. There was no evidence put before
the tribunal to show that the Guidance note had been brought to the attention
of the claimant. The claimant gave oral evidence that he was not aware of
the Guidance Note until after the disciplinary process began.
It is for the employer to
explain to the employee what constitutes
misconduct. The respondent failed to provide any evidence to show that the
documents
upon which the disciplinary process relied were provided to the claimant. This
failure is in itself sufficient to undermine the entire process and render the
dismissal unfair.
However, if we look to the documents in any event, the most basic question to ask is “do these documents specify that certain conduct will lead to disciplinary action?”
Mr Spence referred to AEC 84/08 and what he considered was the direction contained within it to bring any flaws in the system to management’s attention. If we examine AEC 84/08 we find that it mentions “should audit trails identify unauthorised and inappropriate activity by staff, they may face disciplinary action”.
Where is the document which warns an employee that clicking on “everyone” is not only an act of misconduct, but one so serious that it may, if not will, result in dismissal?
The simple answer is that it does not exist.
On the contrary, the tribunal has been shown numerous documents which refer to the access controls only one of which mentions the possibility of disciplinary action and none of which mentions dismissal.
Mark Maxwell, the power user, accepted in his interview with Marie Quinn that an end-user “could consider that they were authorised to have acted” in the manner Spence was alleged to have acted.
1.2 Failure to make the rules readily available to employees
No evidence was provided that guidance notes from Records NI were provided to Mr Spence. It was accepted by Mr Maxwell that the Department
does not even take the step of asking users to sign a statement confirming that they have either read or understood the guidance relating to TRIM before using it9.
Mr Maxwell conceded in his interview
that many members of staff are unaware of the intranet guidance and so trainers
will be adding Guidance notes to the
hand-outs at
future courses. No evidence was provided to the tribunal to show that
this was done.
1.3 failure to ensure employees knew or understood the rules
There is no on-screen notice drawing
attention to the conditions governing
use10.
The tribunal has also seen an e-mail from Mark Maxwell acknowledging that there had been several previous occasions on which DARD documents were visible to “everyone” in the department11’. This is the precise act which results in Mr Spence’s dismissal. Significantly, this e-mail sent to the Lead Implementation Managers to “pass on this information to all staff who are using Records NI” does not mention either misconduct, the disciplinary code, Departmental or NICS procedures, Data Protection, misuse of systems or dismissal.
Mr Spence received training. The tribunal have his training hand-outs12. The tribunal have his responses to a questionnaire about the training (or as Mr McPeake described it: his “happy form”). There is no mention of misconduct. Mr Spence’s comment is telling:
_____________________
9[01-213]
10[01-213]
11[02-413]
12[04—001 to 04-019]
The training on the day was very successful but there will need to be follow up on a one to one basis in the office situation when we have had time to practice13
It is note
made clear
that setting view document access to “everyone” will make the document visible
to the entire NICS. On the contrary the document clearly states that if view metadata
is set to a control group all other access
settings are irrelevant:
If View Metadata access is denied to a user/group then the other Access Control Permissions become irrelevant.
Therefore,
if you remove
yourself form the View Metadata access control
on a document, you will no longer be able to view/edit the document as you will
no longer see that it exists.14
This is the respondent’s document. Mr Maxwell gave oral evidence that this was incorrect. It was put to Mr Spence that this was incorrect. This begs the question: how can it be fair or reasonable to discipline and dismiss an employee when the clear explanation given to him in training is, apparently, wrong? The simple answer is that it is neither fair nor reasonable.
Q2] Did the employer make the
employee aware
that misconduct of this type may or was likely to result in dismissal?
It is not enough to say that an action will be regarded as misconduct; every
employee should have fair warning of the penalty that might be imposed for
certain misconduct Again, this fundamental principle has been incorporated in
the LRA Code of practice:
_______________________
13[04-020 to 04021]
14
[04-008], [02-004]
58. Employers should inform employees of the likely consequences of breaking disciplinary rules. In particular, they should list examples of acts of gross misconduct that will warrant summary dismissal.
AEC 84/08 which specifically deals with access controls does not mention dismissal.
The respondent also relies on Guidance Note 6. As the tribunal is aware no evidence was called to establish how this Guidance Note was brought to the attention of the claimant, and the document neither mentions misconduct or dismissal.
The only document which mentions
dismissal is point 4 of Annex 1 to section 6.03 [01-196] which sets out
examples of behaviour which might lead to dismissal for gross misconduct: “any
wrongful or unauthorised access to IT systems or other breach of IT security”.
4 Conclusion
If the tribunal is satisfied that the respondent failed to warn Mr Spence that
the his actions in opening the accessible documents were misconduct, or that
such actions may result in dismissal then the whole disciplinary process and
subsequent dismissal is fatally flawed.
While these flaws in the dismissal of Mr Spence are fundamental, the claimant
also relies on numerous flaws in the disciplinary process.
5
The
Investigation
An employer must show that in carrying out the investigation it did not act
unreasonably: Ulsterbus Limited v Henderson [1989] IRLR 251 paragraph
2115 in J Sainsbury Ltd v Hitt Mummery LJ
stated at paragraph 34 that the
____________________
15Per O’Donnell LJ [21]…What the Tribunal
appears to be
suggesting is that in certain circumstances it is incumbent
on a reasonable employer to carry out a quasi-judicial investigation with a
confrontation of witnesses, and cross—examination of
witness. While some employers might consider this to be necessary or
‘range of reasonable responses approach applied to the conduct of investigations, in order to determine whether they are reasonable in all the circumstances, as much as it applies to other procedural and substantive aspects of the decisions to dismiss a person from employment for a conduct reason’.
In other words, it is not for the Tribunal to determine whether the conduct of the investigation was reasonable but whether in the particular circumstances of the case the investigation fell within the range of reasonable investigations to enable the particular allegations against the employee to be investigated and determined. Thus the nature and depth of any investigation will vary with the circumstances and conduct under consideration.
It is clear to see that if the particular allegations are incorrectly framed or flawed the investigation is doomed from the outset.
Marie
Quinn carried out a detailed and lengthy investigation. Her report and its 32
appendices run just over 800 pages from [01-133 to 01-470 and 02-
001 to 02-470]. This included 5 interviews. There was a further Addendum
provided.
A
cornerstone of the disciplinary action was that there was a warning dialog
box which the claimant would have ignored16. The claimant denied
having
seen such a warning.
It was common case that this had never been demonstrated to any of the decision-makers or even to the investigator. The failure to replicate this
__________________________________________________________________
desirable,
to suggest
as
the Tribunal did, that an employer who failed to do it in a ease such as this
was acting unreasonably, or in the words of Lord Donning, acting outside: ... a band
of reasonableness, within which one employer might reasonably take one view,
another quite reasonably take a different view; is in my view insupportable
16 McPeake
clearly sets this out in his reasoning at paragraph 12.
warning screen at any stage was a most basic omission in the disciplinary process.
It is a basic step: the failure to consider a highly relevant piece of evidence
may render the dismissal unfair.
6 The Disciplinary Process - The Band of Reasonable decisions
The tribunal is bound by the Court of Appeal decision in Dobbins v Citybus Limited [2008] NICA 4217 in which Higgins LJ delivered the judgment of the court. The Burchell Test was cited with approval. This is in essence:
(1) there must be established by the employer the fact of belief that the
employee had committed the act of misconduct; that the employer did believe it.
(2) that the employer had in his mind reasonable grounds upon which to
sustain that belief.
(3)
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 burden of proof on the employer to demonstrate the fairness of the
dismissal has been removed since Burchell was decided and it is now neutral.
7 The demands of natural justice: meeting the case against you
It is a fundamental part of a fair disciplinary procedure that the employee knows the case against him. Fairness requires that someone accused should
________________________________
17Paragraphs 50—50 Higgins LJ mentioned: British Homes
Stores v Burchell
[1980] ICR 303 and Iceland
Frozen Foods Ltd v Jones [1983] ICR 17- and explained and refined principally in
the judgments of
Mummery LJ in two further cases . Foley v Post Of/ice and HSBC Bank
Plc ‘formerly Midland Bank Plc) v
Madden reported at [2000]
ICR 1283 (two appeals heard together) and J Sainsbury v Hitt
[2003] ICR 111..
Cited and approved by the Court of Appeal in Rogan v [2009] NICA 47
know the case to be met; should hear the important parts of the evidence in support of that case; should have the opportunity to criticise or dispute that evidence and to adduce his own evidence and argue his case18.
The LRA Code of Practice is instructive:
6l
When drawing up and
applying procedures employers should always bear in mind the requirements of natural justice. This means
that employees should he given the opportunity of meeting with someone who has not been involved
in the matter where possible. They should he informed of the
allegations against them, together with the supporting evidence, in advance of the meeting. Employees should be given the opportunity to challenge the allegations before decisions are reached and should be provided with a
right of
appeal.
and:
16. At the meeting, the employer should begin by restating the complaint
against the employee and going through the evidence that has been gathered. The
employee should he allowed to set out his/her case and answer any allegations
that have been made. The employee should also be allowed to ask questions, present
evidence, call witnesses and he given an opportunity to raise points about any
information provided by witnesses.
The bare minimum requirements of the statutory dismissal procedure refer to it
in requiring that meetings under the procedure:
(2) Meetings must be conducted in a manner that enables both employer and
employee to explain their cases.
In England a number of cases have considered this issue. In Louies v Coventry
Hood & Seating Co [1990] IRLR 324, Wood J said:
_________________
18Spink v Express
Foods Group Limited [1990]
IRLR 320
‘It does seem to me that it must be a very rare case indeed for the procedures to be fair where statements which
have been given in writing by
witnesses and upon which in essence the employer is going to rely almost entirely — and that is this case
—
that an employee should not
have a sight of them or that he should not he told very clearly exactly what is in them or
possibly have them read to him. One understands that there may be delicate
situations. We have dealt with the case of informers in Linfood Cash &
Carry v Thomson [1989] IRLR 235. It may be that one does not want to exacerbate
the relationship between employees or possibly groups of employees at work.
However, where the essence of the case, the main substance of the case, is
contained in two statements which this employee asks to see and which he is
refused without reason and upon which substantial reliance is placed, then
prima facie to me it seems to be unfair. It may be the reaction of a lawyer; I
trust it is the reaction of anyone”
The claimant contends that the respondent breached the LRA Code in the
following respects:
1 the meeting should be with someone who is not involved in the matter
2 the supporting evidence was not provided prior
to the disciplinary
meeting
3 failing to go through the evidence which had been gathered
4 undermining the claimant’s right to call witnesses
7.1 A meeting with someone not involved n the matter
There are several reasons why Gerry McPeake should not have heard the disciplinary meeting:
I. he had been involved since the outset: he was the recipient of the initial
protected disclosure.
II. he was
responsible for deciding that the pre-existing grievance should not be progressed
in breach of the contractual grievance procedures.
III He had directed that the disciplinary proceedings should override the pre-existing grievance.
IV. He had failed to arrange a grievance meeting within 10 working days of the grievance being lodged”
V. He failed to take any
steps to agree with Mr Spence that the normal
grievance procedures should be suspended-
VI. He had met with the
investigator Marie Quinn to discuss which
documents she should rely on.
VII. A grievance had been
raised against him because of his actions: the
on-going delay in resolution of the disciplinary and unexplained
failure to progress the grievance.
7.2 failure to provide evidence before the disciplinary meeting
Witness statements were taken from several employees. None were provided to the
claimant. An investigation report of 800 pages was prepared by
private human resources contractors: it was not shared with the claimant
prior to the meeting.
The decision-maker accepted that he read the report and relied upon it in
making his decision. Indeed, he requested a supplemental report. This was
read and relied upon. And again, the claimant was not provided with a copy of
the report.
This was not a matter of an oversight. The claimant specifically requested
sight of the documents and was pointedly refused. In oral evidence the
decision maker simply a stated that there was a policy within the Department of
Agriculture that witness statements and investigatory reports were never
_______________________
19[03-419] at 6.5a
provided to staff during the disciplinary process. They were however, released after dismissal: at a point when they were no longer of use to the ex-employee.
The statements contained significant information: the concession by Mr Maxwell
that an end-user could consider himself authorised to change access controls is
one striking example.
There is simply no logical or rational explanation for the refusal to provide
the statements and documents upon which the decision-maker relied. It offends
against natural justice and is particularly disturbing when defended by a
public body solely on the basis of being a matter of policy.
7.3 Failing to go through the evidence which has been gathered
This point follows on from point 2: the contents of the report and the addendum were not shared with Mr Spence.
74 Undermining the right to call witnesses
Mr
Spence was informed of the disciplinary investigation by Mr McKendry on 31st
March 2009. He was also
instructed not to speak to anyone about the matter. Mr Spence’s evidence was
that this thwarted him in preparing for the
investigation and the subsequent disciplinary.
Mr McPeake was clear that Mr Spence should have been allowed to talk to witnesses in order to prepare his response to the disciplinary charge. He initially thought that he had informed Mr Spence about this right, but accepted that he had not done so when asked to consider his letters to Mr Spence.
Mr McPeake also stated that right to call witnesses was set out in the disciplinary procedure. Again when asked to point this out he was unable to do so.
The result of the direction given by Mr McKendry and the failure to inform Mr Spence that he was entitled to speak with potential witnesses to help him prepare for the disciplinary meeting was to isolate him and remove a basic source of support and help in his defence. Mr Spence had no computer expertise and reasonably considered that he had been hamstrung in his defence.
It is submitted that this failure is sufficient to render the dismissal unfair.
8 Failure to deal with grievances outstanding against decision-makers
This is another straightforward issue of fairness. It is potentially unfair for
a decision-maker to be subject of a grievance at the time of making the
decision. Again, the LRA Code of Practice deals with this problem:
34. In the
course of a disciplinary
process, an employee might raise a grievance about an issue which is related to the
case and which,
for example, could possibly and unfairly influence the conduct or outcome of
the process to his/her
detriment if left unresolved.
If this happens, the employer should (my emphasis) consider suspending
the disciplinary procedure for a short period while the grievance is dealt with. Depending on the
nature of the grievance,
the employer may need to consider bringing in another manager to deal with the disciplinary process. In small
organisations this may not be possible, and the existing manager should deal
with the case as impartially as possible.
It is contended that the
respondent failed in two aspects:
(1)The respondent did not consider suspending the disciplinary process
(2)The respondent did not
consider bringing in a different manager to
deal with the process
Mr
McPeake had been named in a grievance months before he took the
disciplinary hearing. The respondent is a large public body. In cross
examination it was accepted that no steps whatsoever had been taken to
consider either suspending the disciplinary procedure or bringing in another
manager to deal with the disciplinary process. No explanation was provided for
this failure.
Mr Trelford had also been the subject of a grievance. Again there was a
failure by the respondent to even consider the recommendations of the code.
9 Was dismissal an unfair sanction?
Mr Spence was given a direction from Mr McKendry his line manager that he should not access any more documents, and he did not do so. At the line management level there is no evidence before the tribunal that there was a breakdown in trust or confidence in Mr Spence. Indeed, that simple direction and continuation with work for the next 12 months is a strong indication of on-going trust.
The tribunal may not consider this surprising given that the claimant had
worked for 24 years in the civil service with a clear disciplinary record.
It is this context, that the decision to dismiss must be viewed. The LRA
again provides guidance:
18. Following the meeting the employer must, decide whether disciplinary
action is justified
or not. Where it is decided
that no action
is justified the
employee should be informed. Where it is decided that disciplinary action is
justified the employer will need to consider what form this should take.
Before making any decision the employer should take account of the
employee’s disciplinary and general record, length of service, actions taken in
any
previous similar case within the organisation, the explanations given by
the employee and — most important
of
all — whether the severity of any
intended disciplinary action is reasonable in all the circumstances. In
considering the circumstances employers should take account of, in particular,
the extent to which standards have been breached. Employers should also
consider any special circumstances which might make it appropriate to adjust
the severity of any intended action.
The letter of dismissal does
not mention either, Mr Spence’s long service,
his clear disciplinary record or any consideration of action taken in similar
cases. These are striking omissions.
It is submitted that no reasonable employer would have dismissed Mr
Spence in the circumstances of this case:
• his long service - 24 and a half years
• his unblemished record,
• his open and frank disclosure relating to accessible documents
The decision to dismiss in the circumstances was far from being fair or
reasonable: it was simply wrong-headed and obtuse.
10 APPEALS
The tribunal is tasked with considering the whole of the disciplinary.
process20.This third appeal was conducted as a review. The decision
recounts the background and as a conclusion records: “after carefully
considering the written statement together with the oral submission the CASB
concluded by a unanimous decision that the decision to dismiss Mr Spence was
fair and
that the proper procedures had been followed.”
20Taylor v OCS Group Ltd [2006] EWCA Civ 702, [2006] IRLR 613. [2006] ICR 1602
There is no explanation of the rationale for the decision which was made the day of the hearing. No evidence was called in relation to the decision.
It is submitted that if the original decision and appeal were flawed then the appeal to the CASB cannot cure that defect.
11 Reinstatement or Re-engagement
The claimant has intimated to the tribunal that he wishes to return to his post
within DARD. The respondent has suggested that his post remains vacant but some concerns were raised through counsel
that this would not be a preferred option for the respondent.
The onus is on the respondent to call evidence in any case in which the respondent seeks to resist an order for reinstatement. This was not done.
Since the post remains vacant it would appear that it is reasonably practicable to return the claimant to his post. The respondent may raise the issue of contributory fault which if present is a factor the tribunal must take into consideration when deciding whether to order re-instatement.
Much depends on the decision of the tribunal and the basis for the decision. The claimant has a very long and unblemished record of service with the NTCS. He was not suspended and continued to work throughout the protracted investigatory and disciplinary process. These are weighty considerations in favour of ordering re-instatement.
12 Compensation
The loss of his post has had catastrophic financial implications for the
claimant. The Schedule of Loss sets out his potential loss to retirement
including pension based on a loss of net salary and the pension calculation
guidelines provided by the Government Actuary.
It is submitted that it is highly unlikely that the claimant will find any employment with a final salary scheme and that therefore there should be withdrawal factor.
The claimant has applied unsuccessfully for a number of jobs. The claimant is
58. He was due to retire at 65. It is submitted that after working for the NICs
for 24 and a half years it is a reasonable assumption that he would have worked
there until retirement. No evidence was called by the respondent to suggest
that there would be a redundancy exercise which would affect the claimant had
he continued in employment.
In these circumstances, the starting point for an award should be the loss to
the date of retirement.
Brian McKee
12th October 2010
Relevant Legislation: Unfair Dismissal & Protected Disclosure
The relevant statutory provisions are:
130.—(l) 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.
(3) A
reason falls within
this paragraph if it—
….(b) relates to the conduct of the employee,
(4) 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
(b) shall be determined in accordance with equity and the substantial merits of
the case
134A -- An employee who is dismissed shall be regarded for the purposes of this
part as unfairly dismissed if the reason (or, it more than one, the principal
reason) for the dismissal is that the employee made a protected disclosure.
(b) Detriment & Protected Disclosure
67A. In this Order a “protected disclosure” means a qualifying disclosure (as defined by Article 67B) which is made by a worker in accordance with any of Articles 67C to 67H.)
67B. ——(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following—
…..
that a person has failed, is failing or is likely to fail to comply with any
legal
obligation to which he is subject,
(f)
that information tending to
show any matter falling within any one of the preceding sub-paragraphs has been,
is being or is likely to be deliberately concealed.
(5) In this Part “the relevant failure”, in relation to a qualifying
disclosure, means the matter falling within sub-paragraphs (a) to (f) of paragraph (1).
67C —
(1) A qualifying disclosure is
made in accordance with this Article if the worker makes the disclosure in good
faith—
(a) to his employer, or
70B. —(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.
(2) this Article does not apply where—
(a) the worker is an employee, and
(b) the detriment in question amounts to dismissal (within the meaning of [Part Xl]).
___________________________________________________
CLAIMANT’S COMMENTS ON RESPONDENT’S SUBMISSION
BACKGROUND
3 The appeals against the decision were not re-hearings.
LEGAL POSITION
The law in relation to the band of reasonable decisions, and the clear direction that the tribunal should not substitute its views as to what a reasonable outcome would be for those of the employer, is not in dispute.
INVESTIGATION
18 The claimant’s case is that clicking the “everyone” button is by no means the “key issue”. It is not in dispute. There are 2 key issues relevant here:
(1) The claimant contends that he was authorised to do so by the permissions inherent in the system. This view is accepted by Mark Maxwell. If the claimant was authorised by the system then the entire fabric of the disciplinary process falls away, and
(2) It is clear from Gerry McPeake’s letter of dismissal that he relied heavily on the fact that Mr Spence had clicked through a warning numerous times. This foundation stone of his reasoning was challenged by Mr Spence, and yet no step was taken to verify this. It is simply beyond the scope of any reasonable investigation into this matter to have failed to carry out this simple quick cost free step.
FINDING OF MISCONDUCT
22 There is a fatal lack of particularity in the allegation that the claimant breached “various Departmental and NICS procedures”. This lack of particularity is symptomatic of the failure of the respondent to clearly identify disciplinary offences. Two factors are especially significant:
(1) reliance was placed on breach of a guidance note which the respondent has been singularly unable to establish was brought to the attention of the claimant
(2) the internal e-mails and literature relating to the document settings are inconsistent and none particularise the offence which the claimant allegedly committed.
It is perhaps astonishing that such a fundamental system introduced across the Civil Service did not merit clear and specific warnings of potential disciplinary matters in accordance with the LRA Code of practice and good employment relations.
28ff Mr McPeake failed to address the fundamental issue of whether the respondent had informed its employees that certain conduct would amount to misconduct and what disciplinary sanction would be applied. This failure may have flowed from the failure of the investigation to carry out the same process. In effect, Mr Mcpeake has assumed that the claimant was properly and fully informed of the potential misconduct and carried out his analysis on that basis. In such circumstances the analysis, however, genuine, the decision, even if made innocently and in good faith, is fundamentally flawed.
By failing to address the warning dialog issue, and by failing to analyse at all the propriety of the disciplinary warnings, Mr McPeake is inexorably drawn to conclude that Mr Spence carried out a series of deliberate acts of misconduct. In such circumstances, starting from such flawed beginnings, he considers that the claimant should be dismissed.
The glaring hole in this approach is evidenced by two matters:
(1) Mr Spence volunteered all the information to his employer. The respondent’s submissions and Mr McPeake’s analysis must view this as an act of suicidal rank stupidity. It is either that or the act of an employee who is not aware that he has apparently been acting in a manner which could result in his dismissal. It is notable that the respondent’s submissions go beyond the respondent’s evidence in further attacking the honesty and credibility of Mr Spence [35-36]: the submissions become hyperbolic “rather than trampling on the rights of others”. The difficulty of this submission is that quickly comes face-to-face with the fact that Mr Spence, with no prompting, brought this matter to the attention of his employer. This fact fatally undermines the basis of the reasoning behind the respondent’s disciplinary process. Shying away from the hyperbole, the complaint reduces to: well you should have done it earlier.
(2) Mr Spence’s 24 year unblemished record of service for the respondent, and the fact that his line manager apparently had no difficulty letting Mr Spence continue working with access to the computer system, not only until 31 March but beyond. These are not the acts of a manager towards someone who is considered or suspected to be dishonest or untrustworthy. They speak volumes as to the integrity and perceived integrity of Mr Spence.
30 To suggest that Mr McPeake’s analysis is unimpeachable is to congratulate the man who built his house on sand about the splendour of his new house and ignore the disastrous foundations upon which it rests.
One should always be wary of hyperbole and cynicism. The claimant’s case is based on neither, and uses neither. The claimant relies on an impassive and simple approach to the facts.
38 It is interesting that the respondent’s submission relies on the explanations given by Mr Maxwell and Mr McPeake concerning the effect of the “everyone” button. The tribunal should not, according the authorities relied upon by the respondent rely on this evidence. Mr Spence gave evidence about what he was told, at the time. He gave evidence about the documents that he was given before the alleged misconduct. He explained his understanding of the training he was given by the respondent before the
event. All this evidence relates to the issue of whether the respondent properly informed the claimant that the alleged conduct was in fact misconduct. Mr Spence showed the tribunal the document he was handed. It does not accord with the explanations given by Mr McPeake or Mr Maxwell. Mr Maxwell was dismissive about Mr Spence’s views in evidence, and yet it was he who acknowledged as part of the investigatory process that an employee could well believe that he is authorised to view the relevant material.
The tribunal must consider the situation and the respondent’s conduct at the time of the dismissal process, not the post facto explanations provided. The further unwarranted attack on the claimant’s honesty [42] seems to be based on the flawed notion that the evidence given with hindsight at the tribunal about the correct functioning and procedures applicable take precedence over the evidence of relating to the lack of information, inadequate warnings, mixed messages, inadequate instruction, inadequate training and failure to provide follow up training (despite the specific written note given by the claimant) at the relevant time.
It is also interesting to note that Mr Maxwell, who had responsibility for document security has not been investigated, nor disciplined.
THE SANCTION
I refer to the original submissions.
PROTECTED DISCLOSURE
I refer to the original submission
THE GRIEVANCE
I refer to the original submission
WITNESS STATEMENT AND INVESTIGATION REPORT
I refer to the original submission. Louie’s is more robust in its analysis than that put forward :“where an employer places a heavy reliance upon the statements of witnesses it risks unfairness if the accused employee is not given sight of those statements or appraised in specific terms of the content”. The headnote begins “an employer’s dismissal procedure was prima facie unfair if an employee was not permitted to know the contents of statements on which the employer would rely in taking the decision to dismiss the employee”.
At 59-E Wood J states:
It does seem to me that it must be a very rare case indeed for the procedures to be fair where statements which have been given in writing by witnesses and upon which in essence the employer is going to rely almost entirely—and that is this case—that an employee should not have a sight of them or that he should not be told very clearly exactly what is in them or possibly have them read to him.
In Hussain v Elonex it is correct that the Court of Appeal in England stated that there is no hard and fast rule. It is interesting however to look at the particular case with which they were faced: an allegation of head-butting where the witnesses themselves gave evidence.
What emerges from the two authorities cited by Mr Cook is not that there is a failure of natural Justice where witness statements are obtained but not disclosed, but there is a failure of natural justice if the essence of the case on the employee’s conduct is contained in statements which have not been disclosed to him, and where he has not otherwise been informed at the hearing, or orally or in other manner, of the nature of the case against him. I would emphasise the passage in Wood J’s judgment in Louies v Coventry Hood & Seating Co Ltd [1990] IRLR 324 where he referred to the substance of the case being contained in statements which the employee had asked to see and which had not been shown to him, with no good reason being shown, and on which substantial reliance had been placed in reaching the decision to dismiss him. That is not the case here. The industrial tribunal was entitled to reach the conclusion that the investigation was fair and reasonable in all the circumstances. Mr Hussain knew that he was being accused of having head-butted Mr Gurden. He was given a full opportunity to respond to that allegation at the hearing in the disciplinary tribunal. He was present and gave his version, which I have, quoted from the notes. Mr Gurden was present and gave his version. There was a fair and reasonable hearing. It also appears that, although four statements were obtained and none of them was disclosed; only one was possibly relevant to the allegations against Mr Hussain. That was the statement of Mr Mark Philpot. Although Mr Wetrin said he had read that statement, it is clear, as the industrial tribunal said, that it had not been relied on in the investigation in any way that could be detrimental to the position of Mr Hussain. At best, the statement of Mr Philpot was favourable to Mr Hussain; at worst it was neutral.
In the present case Mr Mcpeake has 100s of pages of evidence, and witness statements, particular details of which would have helped the claimant considerably. With no adequate explanation, other than a repetition that it was policy, a Northern Ireland government department refused to provide an employee of 24 years standing a copy of an investigation report and a supplementary report. It is submitted that this is simply totally unreasonable, unjustified and unfair.
STERIA REPORT
Again the tribunal is referred to an explanation given by Mr Maxwell to the tribunal which was not given to the claimant or Mr McPeake at the relevant time. The respondent cannot rely of post facto evidence to justify the dismissal. This is settled law.
It remains clear that the respondent failed to explain the matter at the
relevant time or give adequate warnings.
Brian McKee
2nd November2010
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OFFICE OF
THE INDUSTRIAL TRIBUNALS IN NORTHERN IRELAND
BETWEEN
EDWARD JOHN SPENCE
CLAIMANT
-AND-
DEPARTMENT OF AGRICULTURE AND RURAL DEVELOPMENT
RESPONDENT
CASE RER 505/10
COMMENTS ON THE CLAIMANT’S WRITTEN SUBMISSIONS
_______________________________________________________________
Comment on the
Introduction page 1
The submissions made on behalf of the Claimant seem determined to ignore his own role in contributing to his dismissal.
Thus, sentences such as he was “dismissed for gross misconduct after he reported to managers his grave concern and. .Mr. Spence’s dismissal arose because of a serious error of this system” are constructed in order to deflect attention from the Claimant’s own acts and omissions.
Throughout the Claimant’s submissions the Tribunal will not find any explanation for why the Claimant felt entitled to view documents which clearly related to other employees. There is no explanation for why by his own admission, he was “dabbling” with the TRIM system, and for why he failed to seek help from managers or from the help line, and for why he had not consulted the guidance documentation available on the intranet.
Comment on the Introduction page 2
Again the Claimant seeks to deflect attention from his own culpability by suggesting that “action” (presumably disciplinary action) should have been taken against other people. The basis for any disciplinary action is not made clear. The point is made on the Claimant’s behalf that certain staff were “entrusted with the administration of the system which contained this error,” as if that would be sufficient to justify disciplinary action.
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If the point being made was intended to be any more than rhetoric it ought to have been explored in the evidence Of course it wasn’t The Claimant was aware and accepts that the TRIM system was designed by Steria, and flaws in the system do not connote misconduct an the pad of those within the Department charged with overseeing that system.
Comment on the Introduction page 3
The comparison between the treatment afforded to the Claimant and the treatment of Mr. Maxwell and Mr. McCartney’s continued into page 3. The point is made that the Claimant “who discovered this serious flaw and reported the matter, has been dismissed,” as if it was his discovery of the flaw or his reportage which caused the disciplinary action to be taken against him.
Is it really the Claimant’s case that regardless of what he himself did, he should escape sanction because there was a flaw in the system which he discovered and reported? If so he appears to be arguing that those who discover and then exploit flaws in the security of systems should be given carte blanche to do as they please.
The point is that the Claimant realised almost immediately that there was a flaw in the system but he did not report it for several days. Instead of reporting it he, on his own admission (page 3 and of course elsewhere), “opened dozens of documents which had been left accessible.”
It is argued on the Claimant’s behalf that he “was unaware that his actions were misconduct and could lead to disciplinary action.” As if to prove the validity of this point reference is made to the Claimant’s long history of service, the absence of any suggestion that he had ever acted dishonestly or inappropriately, and his openness in reporting the problem.
However, it is submitted that none of this establishes that the actions of the Claimant did not amount to misconduct, or that he was unaware that his actions amounted to misconduct. A desire on the part of the Claimant to improve the security surrounding documents associated with him by reporting the security flaw to management is not inconsistent with a knowledge on his part that he was guilty of misconduct by, for example, opening and reading documents concerning the personal, welfare and health affairs of colleagues.
The Claimants report to his managers makes the point that the absence of appropriate TRIM Access Controls on documents concerning him constitutes a “very serious infringement of my rights Yet notwithstanding the clear labelling of the documents and containers relating to colleagues (and indeed management issues which he had no business looking at) the Claimant would presumably maintain that he was not infringing the rights of others and was “unaware that his actions were misconduct.” Plainly, this is the fundamental flaw in his argument: he cannot
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seriously and honestly maintain that he did not believe he was doing anything wrong when viewing documents relating to others just because he could.
Comment on the Introduction page 4
It
is correct to say that the Department (Mr. Maxwell) had originally assumed that
access was being altered by a TRIM power user who was abusing their privileges’
to do so. In fact, as we now know, the system was not working as the Department
or Steria envisaged and it was a flaw in the system which permitted an end user
such
as the Claimant to change access controls.
The
point is made on the Claimant’s behalf that the “breach of security protocols
could have been exploited...” Presumably, the point being made here is that the
breach could have been exploited by others with malicious intent. Yet again,
however, there is a failure on the part of the Claimant to deal with his
own exploitation of the system. Ultimately, he opened dozens of documents
including
those which he should have known contained no reference to him, before making
that report.
The Claimant seeks to make a virtue of his conduct, and presents himself as having “acted with honesty and integrity.” In my primary submissions I have drawn attention to the Claimant’s assertion that he was “opening documents to see if they were about me” (see paras 32-36), when in fact he was carrying out searches and looking into documents when it must have been perfectly obvious to him that he was infringing the rights of others. It is submitted that the Claimant’s conduct in this respect does not attract the gloss of integrity just because his reporting of the matter drew the Respondent’s attention to it.
Comment on the Introduction page 4
It
is acknowledged that the Claimant raised a grievance that the Department, had
failed to protect his personal data, and that this grievance was not
investigated. I
have addressed these issues in my primary submissions from paragraph 59.
It is often the case that there is a coalescence between disciplinary issues
and grievance issues. As the Claimant emphasises elsewhere in their submissions
(at section 8, page 20) the Labour Relations Agency Code of Practice indicates
that in certain circumstances an employer should consider suspending the
disciplinary procedure while the grievance is dealt with. This is particularly
so where an unresolved grievance could “unfairly influence the conduct or
outcome of the [disciplinary] process to his detriment.”
I address this point at paragraph 60 of my earlier submissions. In the context of an unfair dismissal complaint it is not enough to say that an employer failed to address
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a grievance The important question becomes whether this failure had any consequences for the fairness of the dismissal.
It
can be readily observed that while they were related, the grievance and
the disciplinary processes addressed quite separate issues. Moreover, the
complaint at
the heart of the Claimant’s grievance (‘the Department had failed to protect
his personal data”) was accepted bi Mr. McPeake (paragraph 61 of my earlier
submissions). The weakness of the Trim system which meant that the Claimant’s
records were inadequately protected did not, however, excuse his conduct.
It
is submitted that the decision which was taken to proceed with the disciplinary
process and to set the grievance to one side while the disciplinary aspects
were examined was entirely logical and fair The Claimant cannot point to any
respect in
which the decision rendered the dismissal unfair.
The additional complaint is made that Mr. Trelford should have stood down from hearing the appeal because he was named in a grievance. This is dealt with at paragraph 88 of my initial submissions.
Comment on Whistleblowing dismissal page 5/6
For
the avoidance of doubt the Respondent accepts that an employee cannot be
subjected to a detriment for having made a disclosure. In this case the
Claimant’s disclosure was that appropriate TRIM access controls were not in
place, and that this
constituted a serious infringement of his rights under the Data Protection Act
(see page 201-1). Plainly, if the Tribunal finds that the Respondent invoked
the disciplinary process because the Claimant made this disclosure/complaint
then the subsequent dismissal could not be a fair dismissal.
However, this was not how the Respondent proceeded. Plainly, the disclosure raised by the Claimant had to be investigated and it was in the course of that investigation that the flaw in TRIM security was identified, and the Claimant’s conduct in exploiting those flaws was exposed. It is submitted that it was entirely permissible for the Respondent to subject that conduct, to the disciplinary process.
It is somewhat surprising that the Claimant seeks to advance the contention that it is illegitimate for the Respondent “to distinguish between the disclosure and acts of misconduct surrounding the disclosure.”
In support of this contention reference is made to Article 7DB of the Employment Rights Order (NI) 1996. It is understood that the Claimant does not raise a complaint under the auspices of Article 708. The issue for this Tribunal then is whether (for the purposes of Article 134A) the principal reason for the dismissal was that the Claimant made a protected disclosure.
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I have addressed these
issues in my primary submissions, from paragraph 55. The Respondent agrees with
the Claimant’s submission that “a Tribunal needs to examine very carefully a
disciplinary process which is imposed upon an employee who has made a protected
disclosure.” However, the rest of that submission (at page 6) is clearly wrong
because it suggests that the disciplinary process simply “concerns the
circumstances in which he came by the knowledge which is the subject of his disclosure…”
When
it examines the disciplinary process it is submitted that the Tribunal will find
no evidence that the disciplinary process was used as a vehicle for reprisal,
but rather that it was invoked because it was appropriate to do so to address
issues of
misconduct.
Indeed far from holding the Claimant to account for the “circumstances in which he came by the knowledge which is the subject of his disclosure” (as he implies) it can be seen that the disciplinary process was about something else entirely: it concerned the manner in which he changed access controls (using the ‘everyone’ button) and it concerned the multiplicity of changes which he made using that method, including the viewing of documents which had nothing whatever to do with him.
Comment on Whistleblowing detriment page 6/7
The Respondent has not understood the Claimant to be complaining about anything other than the fairness of the dismissal, whether pursuant to Article 130 or Article 134A of the 1996 Order.
The Respondent has not understood the Claimant to be alleging that the failure to investigate the grievance constituted a “detriment” in the sense referred to in Article 70B. It is submitted that no such complaint has been presented to the Tribunal.
In any event it is not sufficient to say, “A failure to investigate a grievance which amounts to a disclosure is a detriment.” Rather if Article 70B was relevant to the Tribunal’s considerations the proper question would become whether the Claimant has been subjected to a detriment (eg. by not investigating the grievance) because he had made a protected disclosure. The cause of the detriment would become the key legal issue.
In this respect the reasons for setting aside the grievance and focussing on the disciplinary issues were fully explained by Mr. McPeake in his evidence and were addressed from paragraph 59 of my primary submissions.
Comment on Unfair Dismissal page 7-13
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The Claimant alleges that he was unaware that his behaviour amounted to
misconduct He says there was no clear rule, the rules that existed were not
readily available to employees’ and management failed to ensure that employees
knew and. understood the rules.
The Labour Relations Agency Code of Practice is cited in support of the Claimant’s position and here reference is made to the need for large organisations to set out their rules in a staff handbook or on the Intranet. It is submitted that the Respondent complied with this guidance in the steps that it took.
The Claimant accepted under cross examination that when he went onto the TRIM system in March 2009 he did not prepare himself by reading up on the material that was available for employees In his Originating Application he has talked about “relearning how to use TRIM” and about “dabbling in the dark” (page 11-1). It is submitted that senior, experienced employees such as the Claimant ought to know that they should not dabble in the dark, They should know that when it comes to important matters such as using the TRIM system a body of rules must exist and that they must be conversant with those rules.
Instead of dabbling in the dark the Claimant ought to have sought out the “rule book” if he was genuinely unsure of how to use the system, and the implications of using it improperly. He could have done that in a number of readily accessible ways. For example, he could have spoken to a manager, or used the Records NI Helpline or accessed the guidance documents available on the intranet. He took none of these steps. Indeed even after recognising that his documents weren’t adequately protected he kept on going, by, on his own account, looking at documents relating to other people to see whether there was any mention of him.
There are two points to be made.
Firstly, as the Claimant appeared to accept under cross examination, had he considered the guidance available on the intranet, particularly guidance number 6 (page 60-4) he would not have used the ‘everyone’ button. This Tribunal will have noted that the guidance provides that the ‘everyone’ button should not be used without specific authorisation from senior management. In using the ‘everyone’ button the Claimant contravened a clear management instruction with regard to the use of his work computer and the TRIM system in particular.
If an employee contravenes a clear management instruction they must know that the likelihood is that it will lead to disciplinary action (page 186-1). The Claimant of course admitted in cross examination that he was aware generally that computer misuse was a disciplinary offence under the disciplinary code (page 196-1).
It is notable that the Claimant did not even read the paper handout which was given to him in training in September 2007 prior to “relearning” TRIM in March 2009. If the Claimant was not prepared to familiarise himself with the guidance for using the
7
system
whether using paper guidance or intranet guidance, submitted that there was
little more that the Respondent could have done to inform him The Claimant
should not be permitted to complain about his ignorance if he did not take
reasonable steps to inform himself.
Secondly, leaving aside what the Claimant knew or ought to have known about the use of the ‘everyone’ button, he must have known without having to be told that accessing files which were clearly labelled as relating to other employees and/or management issues, would be regarded as an act of misconduct.
The
Claimant cannot very well complain that the security around his own documents
was vulnerable (amounting to an infringement of his rights) and at the same
time
seek to maintain that there was nothing blameworthy (in the sense of justifying
disciplinary action) about his own conduct in accessing documents which related
to his colleagues.
Lack of a clear rule /Failure to Make the Rules Readily Available
The complaint is made on behalf of the Claimant that there was no evidence that guidance note 6 had been brought to the attention of the Claimant.
There was clear evidence from Mr. McPeake that guidance notes were circulated via the intranet to all staff. The Claimant made it clear that he did not seek to educate himself about the TRIM system by seeking out the guidance which was available. However, he had no difficulty accessing the guidance notes and actually referred to them when the disciplinary process commenced.
The complaint is also made that the documents do not specify that certain conduct will lead to disciplinary action. Indeed the point is made that a document should specify that use of the ‘everyone’ button is not only an act of misconduct, but one that may lead to dismissal.
It is submitted that such an argument is an affront to practical reality. Employers do not and are not expected to specify every possible infringement which could give rise to dismissal. The disciplinary code is where an employee turns to find descriptions of disciplinary offences (from page 186-1). Is it seriously being contended on behalf of the Claimant that (had he read guidance 6) he could have used the ‘everyone’ button with impunity?
It is submitted that the reasonable reader of such guidance would have realised that by departing from the instruction not to use the ‘everyone’ button they would be breaching an official instruction and engaging in computer misuse, and that such conduct was likely to attract disciplinary sanction. Moreover, the disciplinary code tells the reader (at page 196-1) that computer misuse is an example of behaviour that might lead to dismissal for gross misconduct.
8
Failure to Ensure Employees Knew or Understood the Rules
Again,
the Claimant seeks to have it both ways He claims that he didn’t understand
the rules and that because he was ignorant of the rules he is immune from
disciplinary action. Yet, the Respondent provided managers, a helpline and
guidance which the Claimant choose to ignore. If he had read the handout he was
given at training he would have seen identified (at page 13-4) the ‘record
manager” to whom he could have turned for general TRIM support.
The Claimant’s feedback sheet (“happy sheet”) following training suggested a need for follow up training. The Claimant did not require follow up training to teli him not to use the ‘everyone’ button; a cursors’ read of the guidance material would have told him that The Claimant would not have needed follow up training to tell him that an employee is not permitted to exploit the weaknesses of the system to view documents which had nothing whatever to do with him, but were personal to other employees.
The Claimant asserts that the handout he received at training does not clearly explain the implications of using the ‘everyone’ button. I have addressed this issue in detail in my primary submissions from paragraph 39. It is noted that in his submissions the Claimant selectively quotes from the text at page 8-4 and does not refer to the descriptor attached to “Everyone”.
It is disputed that the information given to the Claimant at training or in the handout was wrong. Read properly the handout told the Claimant that if he used the ‘everyone’ button it lifted all restrictions and gave access control to everyone across the NICS. However, it must be remembered that the Claimant accepted that he never read the handout document prior to commencing his use of TRIM in March 2009. He did not suggest that he was guided by or wrong footed by the handout.
The paint is made that (in 2007) Mr. Maxwell discovered that DARD documents were visible to “everyone”. It is alleged that this was “the precise act which resulted in Mr. Spence’s dismissal.” There is no evidence to support this assertion. There was no attempt to explore with the Respondent’s witnesses whether the circumstances were the same.
Comment on the Investigation page 13-15
The Tribunal is referred to my primary submissions on the question of the investigation (from paragraph 15).
It is rather stretching the argument for it to be suggested that the presence of a dialogue box stating “View document: access denied,” was a cornerstone of the disciplinary action. Instead it was the repeated use of the ‘everyone’ button in contravention of a specific instruction, and the viewing of documents relating to
9
others, which was the
cornerstone of the disciplinary action. The point has already been made (at
paragraph 31 of the primary submissions) but it bears repeating, that even
leaving aside the controversy surrounding the dialogue box, there was still
ample evidence to conclude that the Claimant’s actions constituted misconduct.
Comment on the demands of natural justice page 15- 17
The Claimant’s contention that the disciplinary procedures applied by the Respondent contravened the principles of natural justice are dealt with in my primary submissions principally at
· paragraphs 63-70 regarding the witness statements and the investigation report
· paragraphs 71-78 regarding the Steria Report
· paragraphs 79-85 regarding the Claimant’s access to witnesses paragraphs 86-88 regarding recusal
It is not necessary to respond afresh to all of the points made by the Claimant
in respect of natural justice. A number of additional points are now made in
response to the Claimant’s submissions:
Recusal
The
Claimant suggests seven reasons why Mr. McPeake ought not to have taken
the disciplinary hearing. With the exception of the sixth reason (the meeting
with Ms.
Quinn) the reasons advanced concern Mr. McPeake’s involvement with the
Claimant’s grievance.
Apart from rehearsing these reasons the Claimant does not say why the Claimant’s involvement with the grievance made him an unfair or inappropriate choice to hear the disciplinary procedure. The contention is dealt with under the heading, “a meeting with someone not involved in the matter” (page 17), but that does not adequately explain the Claimant’s argument. Mr. McPeake was not “involved in the matter”. Contrast his position with that of Mr. Maxwell, for example, who gave evidence to the investigation and could be said to have been involved with the mailer. As the establishment officer, and as an officer with no selfish interest in the operation of TRIM, Mr. McPeake was perfectly placed to deal with the disciplinary hearing.
The other reason cited by the Claimant for the recusal of Mr. McPeake was his meeting with the investigator. There was nothing improper about such a meeting. Mr McPeake commissioned the investigation and therefore it was entirely appropriate
10
that he should wish to brief Ms Quinn about the investigation to be conducted
The reasons for the meeting are set out in the investigation report (page 122
and 123-1)
It is unclear why the Claimant views such a meeting and such discussions as
affording a basis for claiming that Mr. McPeake should not have heard the disciplinary
hearing. An allegation of bias has never been made explicitly.
Failing
to Provide Witness Statements
The Claimant points to
one example of how the witness statements could have assisted him. He refers to
Mr. Maxwell’s concession that an end user could consider himself authorised to
change access controls. Technically that is correct and there
has never been any dispute about this.
However,
the point is that the Claimant changed access controls using the ‘everyone’
button when there was express instruction forbidding this, and then proceeded
to view documents some of which concerned the affairs of others:
As was submitted in my primary submissions, there was no dispute on the facts
of this case: the Claimant had changed access controls using the ‘everyone’
button, had proceeded to view the majority of documents, and then left View
Document at ‘everyone.’ It is submitted that in the absence of any such dispute
there was no unfairness caused to the Claimant by failing to disclose to him
the report/witness statements.
It is further submitted that in the absence of any such dispute the disciplinary process boiled down to an assessment of the implications of those agreed facts. The implications of those facts, from the Respondent’s perspective, are explained from paragraphs 27-47 of my primary submissions.
Comment on the Fairness of the Sanction page 21
I have addressed the question of sanction in my primary submissions at
paragraphs
48-54.
The Claimant argues that as he continued to work in the post during the conduct of the investigation, for 12 months, there is no question of a loss of trust. It is submitted, however, that the fact that the Claimant continued to work is only consistent with the fact that judgment on his trustworthiness had been properly suspended pending the outcome of the disciplinary process. This was entirely in keeping with a fair procedure and a determination not to make a knee jerk reaction.
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When all of the facts Were established and considered by Mr. McPeake he was pf the view that confidence had been lost and could not be regained even by downgrading the Claimant to a less responsible post (page 341-3):
Comments on Reinstatement or Re-engagement Page 23
I refer to my primary submissions in this regard at paragraphs 91-95.
The Claimant appreciates the relevance of contributory fault to the question of
reinstatement. It is submitted that a. long and unblemished record of service
is not relevant to the Tribunal’s considerations in. this respect if it accepts
that there was at the very least, contributory fault. The issue of a lack of
suspension is raised again but it is submitted that this does not sound on the
question of the Claimant’s culpability or his trustworthiness in the eyes of
the Respondent.
Martin Wolfe
On Behalf of the Respondent
2 November 2010