Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    881/13  

 

 

 

CLAIMANT:                          Constantine Talalaev

 

RESPONDENT:                  Randox Laboratories Ltd

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant did not make a protected disclosure and was not unfairly dismissed.

 

 

Constitution of Tribunal:

 

Employment Judge:          Employment Judge McCaffrey

 

Members:                             Mrs D Adams

                                                Mr B Hanna

 

Interpreter:                           Mr A Turs

 

 

Appearances:

 

The claimant appeared in person and represented himself.

 

The respondent was represented by Mr J Algazy QC, instructed by Mr C Johnston, Solicitor.

 

1.0                   ISSUES

 

                        The issues for the tribunal to consider were set out in a record of proceedings of a Case Management Discussion in September 2013.

 

                        We can summarise the issues as follows.  The claimant alleged he was unfairly dismissed by the respondent on 19 March 2013.  He said the reason for his dismissal was because he had made a protected disclosure in October 2012, namely that he raised health and safety concerns about the functioning of one of the respondent’s products, the Monza analyser.  He also alleged disciplinary action against him had been escalated because he had refused to sign off on software for a standalone Set-up Jig in the Autumn of 2012 and that there were procedural defects in the unfair dismissal procedure.  The respondent resisted the claims, asserting that the principal reason for dismissal was the claimant’s breach of the respondent’s confidentiality, IT and e-mail policies, in that he had sent confidential company documents to his personal e-mail at home and used the internet for personal use on numerous occasions.

 

2.                     SOURCES OF EVIDENCE

 

2.1                   The tribunal received evidence from the claimant, from his colleague, Benoit Bertet, and his union representative, Martin O’Rourke.  We also heard evidence from a number of witnesses on behalf of the respondent, including Cathy Kirk, Lauren Donaghy and Linda Magee of the Human Resources Department of the respondent; Dr Stuart Jackson, Design Manager of Randox Laboratories Ltd (who was the claimant’s Departmental Manager); Mr Alan Hammond, who was Deputy IT Manager of the respondent and the Investigating Officer in relation to the matters which led to the claimant’s dismissal; Dr Claire Martin, Senior Project Manager of the respondent who conducted the disciplinary hearing and Mr Ivan McConnell (Research and Development Manager of the respondent) who dealt with the claimant’s appeal.  We also had a number of different documents opened to us in the course of the hearing including records of the investigation and disciplinary procedures and various policies and procedures of the respondent company.

 

3.                     CONDUCT OF THE HEARING

 

3.1                   The hearing was conducted over six and a half days.  The tribunal read the witness statements on the first morning of hearing and the claimant then adopted his witness statement and was cross-examined by the respondent’s representative over approximately two days of hearing, although the claimant’s other witnesses’ evidence was interposed during this time.  The claimant then began to cross-examine the respondent’s witnesses, once they had adopted their statements.  It was pointed out to him on a number of occasions that he should concentrate his questions on matters which the witness had given evidence and any points on which his evidence differed to theirs.  As he persisted in asking questions which were not relevant to matters at issue, the tribunal ultimately decided to timetable the
cross-examination of the respondent’s witnesses.  The claimant objected to this, asserting that it was not fair and suggesting he expected a full day to cross-examine one of the HR witnesses who had arranged the initial investigatory meeting for his first-disciplinary and the disciplinary hearing which led to his dismissal, as Mr Algazy had had two days to cross-examine him.  It was pointed out to him that first of all, his own witnesses had been interposed in this time and secondly, that Mr Algazy had cross-examined him on the evidence of seven witnesses on behalf of the respondent.  The claimant was argumentative and deliberately misunderstood questions put to him, which had prolonged the cross-examination.  In taking this approach, we were mindful of the guidance given by Girvan LJ in Peifer v Castlederg HS and WELB [2008] NICA 49, that tribunals should strive to avoid time wasting, repetition, the failure of parties to concentrate on relevant issues and the pursuit of irrelevant issues and questions.  In the event, the claimant had three full days to cross-examine the respondent’s witnesses and did not take all the time which was allotted to him.  He was frequently reminded by the tribunal that he should ask questions which were relevant to the issues in relation to his case.  He was reminded on several occasions that his case consisted of two main strands, one a claim of unfair dismissal and the other a claim of having made a Public Interest Disclosure and that he should concentrate on these matters.  Instead, he persisted in asking detailed technical questions about the operation of the Monza analyser which had only peripheral relevance to his public interest disclosure claim.  However, he focused on this to a large extent, and did not ask questions in relation to his allegations of unfair dismissal which in our view could and should have been asked.  We are mindful that the tribunal can give a certain amount of assistance to an unrepresented claimant, by pointing out what are the legal issues in relation to the case and checking that he has had the opportunity to make all the points he wishes to.  The claimant repeatedly said that he understood the tribunal’s guidance in relation to this matter but then ignored the guidance by going back over old ground which the tribunal had advised him did not appear to be pertinent to the issues before it.

 

3.2                   On a number of occasions, the claimant attempted to change his account of events, or introduce new facts.  When he was asked why these matters had not been covered in his witness statement, he pointed to the 5,000 word limit and said he did not have enough space.  We note that the claimant used approximately five pages of a 17 page statement discussing his qualifications, matters to do with the functioning of the Monza analyser and signing off software for a standalone set-up Jig (see below), none of which are strictly relevant to the issues in the case.  We also note that the claimant did not apply to have the word limit for his statement increased, and that at the hearing the claimant attempted to introduce new assertions not previously made during his employment, in his ET1 form or in his statement to the Tribunal.  Accordingly we doubt the claimant’s explanation for this.  We find that in a number of instances referred to below the claimant’s evidence was unreliable.

 

3.3                   The claimant had specifically asked for an interpreter to be provided and the interpreter was indeed present at public expense to assist the tribunal in relation to the hearing.  However, the claimant refused to use the interpreter except for clarification of certain issues.  This meant that the tribunal frequently had some difficulty in following the claimant.  Although his English is fluent and his vocabulary wide, on occasions his accent was difficult to follow and his syntax inaccurate.  In spite of being repeatedly encouraged by the tribunal to use the interpreter, the claimant persisted in presenting his case through the medium of English.  All of this made the hearing of this case less than straightforward.

 

4.                     FACTS

 

4.1                   A number of issues were introduced in the course of the hearing which the tribunal considers are not relevant to the issues before us.  We have considered all the evidence put before us but in the interests of producing a succinct decision, have set out only the matters which we consider to be relevant, and which we have found as facts.

 

4.2                   The claimant commenced employment for the respondent as a Software Engineer at its Laurelbank Plant near Crumlin on 25 July 2011.  He is Russian, and has gained Masters’ degrees both in Russia and at QUB.  He worked on a number of different projects but was principally working at that stage on the Monza analyser.  This product is a compact semi automated clinical chemistry analyser manufactured by the respondent.  It is used for low volume testing in clinical laboratories, research laboratories and veterinary laboratories.

 

4.3                   The claimant had raised some concerns regarding the operation of the Monza analyser in reports to Dr Jackson, his Departmental Manager.  However, it was Dr Jackson’s evidence that there was nothing in these reports which was unknown to management, or which raised concerns about the safety or accuracy of the functioning of the Monza analyser.

 

4.4                   The claimant, together with Dr Jackson and a number of others, was invited to a meeting on 2 October 2012 to discuss Monza software issues.  At this meeting (which Stuart Jackson did not attend), Graeme McNeill who was a representative from the Sales Department was also present.  The claimant had not met Mr McNeill before.  He confirmed in cross-examination he knew that all those present were from Randox and Mr McNeill confirmed at the meeting he was from Sales.  At this time there were approximately 700 Monza analysers being used by Randox customers and the issues which had arisen were in relation to results of data saving on the fifth and sixth versions of the software had affected only five machines at that time.  The issue was not that test results were inaccurate or could not be obtained but that they were not saved correctly.  At the meeting the claimant made a number of comments regarding the software and following this Graeme McNeill raised concerns with senior management regarding the claimant’s comments.  The claimant was alleged to have said that the software originally written for the RX Monza in India was “very badly written” and that there had been short cuts taken in the programming.  He indicated that the Indian programmers “falsified and fabricated many claims of the software”, that there were errors in the programming which the claimant had discovered and was trying to fix.  The claimant had given as his opinion that a total software rewrite was required on the Monza and that even with a team of dedicated people working on it the timeline would be 18 months to two years which it would include full revalidation.

 

4.5                   An investigation was conducted by Christina McGroddy who was the Embedded Team Leader.  She spoke to both Andrew Wright who was the claimant’s team leader, (although not in respect of the Monza project), and also to Stuart Jackson.  Both Mr Wright and Dr Jackson believed that the comments made by the claimant, if substantiated, were completely inappropriate to have been made to people outside the Engineering Department, and that it was not the claimant’s place to make these comments.  Dr Jackson indicated that the information should have been raised as part of a Monza review meeting but not in front of representatives from the Sales Department who were considered as “internal customers” of the Engineering Department.  When the claimant was questioned about this matter, he agreed that he had made a number of comments as alleged.  When it was put to him that he had raised the issues outside of the Engineering Department and that they should have been raised with Stuart Jackson, the claimant’s reply was that he had raised the matters with Stuart Jackson in his reports.  He said he had not known Graeme McNeill was from Sales, and that he had not been aware that he should not raise these issues outside the Engineering Department.  Ms McGroddy subsequently spoke again to Stuart Jackson and he confirmed that staff knew they should not raise issues on the functioning of a product outside the department and it was common knowledge “not to air dirty laundry” outside of the department.  He also pointed out that Michael Smyth, the Head of Department, had spoken to all staff in a group meeting in the canteen concerning this previously.  The claimant indicated that he had been on leave at the time of this meeting, but we are satisfied that he had been told not to discuss these issues outside the department.  Ms McGroddy’s investigation concluded that the claimant had acted in an unacceptable and unprofessional manner.  She also noted that he had received informal warnings previously for similar matters and a decision was made to refer the matter for a disciplinary hearing.

 

4.6                   The disciplinary hearing took place on Tuesday, 23 October 2012, and the claimant was accompanied at that meeting by Kevin O’Neill, as his accompanying witness.  At that meeting, the claimant indicated that he had never used the words “falsified or fabricated” in relation to the software produced in India, but agreed however that he had said everything else.  He did not agree that he was criticising colleagues and said he was simply stating the problem.  He indicated that he had prepared a response regarding the issues with the Monza: it was pointed out to him that the disciplinary was not about the issues with the Monza but about his comments at a non-departmental meeting.  The minutes of the meeting are detailed, and it is clear from these that the claimant focused largely on the problems which he perceived with the Monza system and did not seem to take on board the matter for which he was being disciplined, i.e., unprofessional conduct.  Gill Craig, who conducted the disciplinary, notes in her overview:-

 

                        “From reading the document (the document which the claimant produced to the disciplinary hearing,) it is clear Constantine is defending the comments he made at the meeting on 2 October 2012.  Constantine is confusing the reason for the investigation/disciplinary hearing, the purpose is not to consider the authenticity of his claims but to consider the inappropriateness of the comments made to Departments/people who are non-engineering.”

 

                        She noted that the claimant admitted that he did not know all the people who attended the meeting.  She also noted that as the claimant was communicating through a second language “the tone and contents of his remarks may be stronger than what is intended and he may find it more difficult to express his comments in a more subtle manner”.

 

                        She went on to say that she believed his professional etiquette needed to be improved and he needed to understand the importance of being more careful of what he says and the manner in which he states it.  The outcome of that disciplinary hearing was a verbal warning to be placed on the claimant’s personal record for six months.

 

4.7                   The claimant appealed this outcome, which was upheld on appeal.  He dismissed the process, saying that the warning had been issued on “imaginary reasons” referring to “non-existent policies”.  We have set out this initial disciplinary matter because it forms the backdrop to the other events which ultimately resulted in the claimant’s dismissal, although it did not form part of the final disciplinary process.

 

4.8                   The claimant, in preparing for the investigation and the disciplinary, sent various company documents to himself at his home e-mail address.  The claimant stated in his witness statement that his understanding was that the investigation would be in relation to “Monza reliability” and that he should prepare relevant evidence.  He stated that as he was particularly busy at work at the time and he was relying on a lift from a colleague to get back to his home in Belfast, he did not have time to prepare for this during work hours and could not stay after hours to do the work.  He confirmed in his witness statement that he forwarded the necessary documents for preparation to his home and e-mail address between 15 October 2012 and 23 October 2012.  It is difficult to understand why the claimant should have thought the investigation related to the functioning of the Monza, as the notes of the investigation meeting conducted by Christina McGroddy make it clear that the concern was that the claimant was raising issues regarding Monza outside of the Engineering Department.  The letter of invitation to the disciplinary meeting dated 22 October 2012 also makes it clear that the purpose of the hearing is to consider an allegation of misconduct “whereby you spoke inappropriately and unprofessionally regarding matters concerning engineering to Departments outside of the Engineering Department despite receiving similar informal warnings previously”.  We find as a fact that the claimant was well aware of the true reason for the investigation and disciplinary at this time and that he had not been instructed to produce a report for the disciplinary on the operation of the Monza.

 

4.9                   From 26 October 2012 onwards copies of all of the claimant’s e-mail communications with the Human Resource Department were “regularly and openly” cc-ed to his personal e-mail address.  The claimant noted that the Human Resource Department was aware of this and had never raised any objections.  There followed a number of e-mail exchanges between the claimant and the Human Resources Department where the claimant queried the policies and procedures in relation to discussing matters outside the Department.  He was ultimately asked to stop sending e-mails to Human Resources, as the matter was now closed.

 

4.10                On 9 January 2013, Lauren Donaghy noted that the claimant had copied both Kevin O’Neill and his personal e-mail address into e-mail correspondence sent to her.  On 9 January, she asked Stuart Jackson to speak to the claimant to remind him of the company’s IT policy on personal e-mails and to stop copying his personal e-mail and other staff members into communications.  Dr Jackson did so and copied Miss Donaghy in on the
e-mail.  Miss Donaghy then updated her Manager, Linda Magee regarding the claimant’s e-mail communications and as a result of this, Linda Magee initiated a targeted search on the claimant’s e-mail and internet activity.  Following this search, the claimant was suspended from his job on 15 January 2013, pending an investigation into his alleged breach of company policy on confidentiality and breach of computer policy.  The claimant was initially invited to an investigation meeting on 22 January, when he had leave scheduled and the investigation meeting subsequently took place on 25 January 2013.  In fact, the claimant had travelled to see his father, who was suffering from a terminal illness at the time but he did not make the respondent company aware of this, judging from e-mail communication at the time.  On 24 January 2013, the respondent obtained an Anton Piller Order against the claimant and his home was searched in relation to documentation which he had sent to himself by e-mail in relation to the initial disciplinary hearing.  While the timing of this was unfortunate from the claimant’s point of view, it is not clear that the respondent was aware of his personal family circumstances at the time.

 

4.11                At the investigation meeting on 25 January 2013, the claimant was given half an hour to review the documents before Mr Hammond started the meeting.  The claimant asked for further time and it was given.  At that meeting, Mr Hammond confirmed with the claimant that he had received training in relation to the company’s internet policy and the claimant confirmed that he had received induction training when he commenced work with Randox.

 

4.12                The relevant documents which refer to company policies on confidentiality and internet use are as follows.

 

                        The claimant’s contract of employment

 

                        The claimant confirmed that he had received the contract of employment which he had signed on 9 November 2011.  That contract includes the following clauses:-

 

                        “Confidentiality

 

                        You must not disclose any secrets or other information of a confidential nature relating to the Company or its business or in respect of any obligation of confidence which the Company owes to any third party, during or after your employment except in the proper course of your employment or else required by law.

 

                        Any documents or tangible items which belong to the Company or which contain any confidential information must not be removed from the Company’s premises at any time without proper authorisation and must be returned to the Company upon request and, in any event, upon the termination of your employment.

 

                        If requested by the Company, all confidential information, other documents and tangible items which contain or refer to any confidential information and which are in your possession or under your control, must be deleted or destroyed...

 

                        “Monitoring of Personal Communications

 

                        You should be aware that the company may monitor, intercept or record all communications received or made via the company’s telephone system or any other system including e-mail and internet usage.  You should not use the company’s telephone or e-mail system for personal use without permission; full guidance is given in the Employee Handbook as to what is acceptable.  If you wish to make a call that cannot be monitored you should discuss this with management.  Monitoring may be conducted by any member of management but will be for work-related purposes only.”

 

4.13                “Restrictive Covenant

 

                        Confidential Information

 

                        For the purposes of this Agreement, confidential information shall be deemed to include any and all confidential information relating to the business or affairs of any Group Company or any customer of any Group Company and shall include trade secrets or their equivalent, details of innovative technology, lists or details of clients, customers, suppliers, agents or distributors, secret information relating to the working of any computer, manufacturing research and development or other process, the contents of laboratory and meetings notebooks, charging structures, sponsorship, advertising or marketing information, business affairs, dealings, transactions, financial and organisational information and transactions which are for the time being confidential to any Group Company and including information relating to any Employee Materials, Group Materials or Materials licensed to the company which may come into your knowledge by reason of your employment by the Company...”

 

                        “To protect the confidentiality of this information you agree:

 

                        “Not in any time whether during or following your employment with the company (unless expressly so authorised by the Company in writing or as a necessary part of the performance of your duties hereunder), to disclose to any person or to make use of any such confidential information;...”

 

                        “Not without the prior written consent of the Company remove from the premises of any Group Company except in the proper performance of his duties or copy or allow others to copy the contents of any computer disks, tapes or Materials, which contain any confidential information or which belong to any Group Company;...”

 

                        “Not at any time to make any copy, abstract, summary or précis of the whole or any part of any document, computer program, tape or other tangible items belonging to the company, except when required to do so in the course of your employment, in which event the disk, C.D., tape, program, copy, abstract, summary or précis shall belong to the Company and shall likewise be delivered up immediately upon termination of your employment.”

 

4.14                The relevant extracts from the Company Handbook read as follows:-

 

                        “Electronic Mail Policy Monitoring

 

                        The Company reserves the absolute right to monitor employees’ use of
e-mail...

 

                        Unauthorised Use

 

                        The Company will not tolerate the use of the e-mail system for any of the following:-

 

                        —          personal use, e.g., social invitations, personal messages, jokes, cartoons or chain letters;....”

 

4.15                There follows guidance in relation to internet usage and the section on Unauthorised Use includes the following:-

 

                        “The Company will not tolerate the use of the internet for any of the following:...

 

                        —          personal communications e.g. chat rooms, “blogging”;

 

                        —          accessing online personal services such as holidays, shopping, banking...

 

                        This is not an exhaustive list.”

 

                        At the end of the section on internet use there is the following sentence:-

 

                        “Failure to comply with any procedure will give rise to the disciplinary action being taken against you, and this could include dismissal.”

 

4.16                Group Disciplinary Policy

 

                        In the Company’s disciplinary policy the list of examples of gross misconduct includes “unauthorised access to or disclosure of any confidential information from whatever source including any personal data under Data Protection Legislation” and “serious misuse of the company’s e-mails/internet or other computing resources.”

 

4.17                Computer and Communication Policies

 

                        The policies which the claimant agreed formed part of his induction were provided to the tribunal.  Under the heading “Computer Policy”, one of the questions is “Does an employee require to work from home?” and there is the following instruction:-

 

4.18                “Company documents and information should never be transmitted to a personal email account or device, (e.g. USB memory stick).  Any company information, confidential or not, held on a laptop or computer must not be removed from the company’s premises at any time without proper authorisation”.

 

4.19                In relation to confidentiality it is noted that staff should verify the recipients of any emails or approve to receive the information contained an email, to avoid a breach of confidentiality.  Amongst the activities which are “expressly forbidden” are:-

 

                        —          “the transmitting of any company documents and information to your non-Randox personal email account”.

 

                                    Staff are also notified that the company employs monitoring software to check on the use and content of email to ensure there are no serious breaches of policy and staff were reminded that email messages which have been deleted from the system can be traced and retrieved. 

 

4.20                Under the heading “Internet Access Policy”, staff are advised that if they require access to the internet for business use, the relevant approval should be requested from the direct manager which ultimately needs to be approved by the Managing Director.  This was confirmed by Mr Hammond in his evidence to the tribunal in that he confirmed that permission needed to be sought from an employee’s Departmental Manager to access the internet, either in writing or verbally.

 

4.21                The policy concludes by saying:-

 

                        “Please keep up to date by continually checking the Company intranet pages for changes to these polices and security policies that will be posted”.

 

                        The HR staff were clear in their evidence that such information would be accessible by the company intranet.  The claimant indicated that he had searched for this information but had been unable to locate it.  The respondent produced further documents showing access to the company intranet through a menu on the employment handbook pages on the intranet.  We are satisfied that this information was available to all staff.

 

4.22                At the investigation Mr Hammond noted that the two main issues to consider were the claimant’s internet usage and his e-mail activity.  He queried with the claimant a number of websites which the claimant had visited including the claimant’s use of the Halifax online banking website.  The claimant indicated at the investigation meeting that he had been checking to see whether he had been paid and maintained he had received permission from Stuart Jackson to do this.  However, at the disciplinary meeting conducted by Dr Martin the claimant indicated that he had in fact gone on the website to get copies of bank statements for a visa application which he had been instructed to do by Dr Jackson to enable him to work at the respondent’s site in the Republic of Ireland.  Dr Jackson’s evidence was that he had told the claimant to assemble the documents needed for the visa application as directed by the Company’s Solicitor at the time, but that he had not given the claimant permission to go on-line at work.  Mr Hammond noted in his investigation however that the claimant had been on this website on numerous occasions and he did not accept the version of events which the claimant had given.  Dr Jackson’s evidence to the investigation was that on one occasion he had seen the claimant on the Halifax website at work and had told him that this was not permitted.

 

4.23                The claimant had also been on a number of other websites including the Translink website and holiday websites.  His explanation for the Translink website was that he needed to get information about bus timetables for getting to and from work and did not believe that this was personal use.  The claimant also maintained that he used a European social networking site called PlusOne, Facebook, YouTube and various other networking sites for research purposes.  Dr Jackson confirmed that YouTube did on occasion have helpful software tutorials.  There was no apparent work-related reason however why the claimant should have been on Facebook or PlusOne.  There were various other websites which the claimant maintained he had accessed by “wrong clicking” including a website which was for weapons which the claimant had visited twice and a website which had sexual content, which Mr Hammond found concerning.  The claimant contended he had visited eBay to look for components which he might then recommend for use to colleagues.  Mr Hammond suggested that the numbers of times the claimant visited eBay on one day suggested he was watching bidding, which the claimant denied.

 

4.24                In relation to the claimant’s alleged unauthorised use of company e-mail, it was clear that the claimant had sent a number of documents to his personal e-mail address but was reluctant to give any explanation of this to Mr Hammond.  Mr Hammond checked with Dr Jackson as to whether the claimant had ever sought permission to send the work concerned home.  Dr Jackson said that he had not, and that on a previous occasion when the claimant had asked to be allowed to send a spreadsheet with Randox information on it to himself at home to work on, Dr Jackson had told him no, because it was Randox property.  Mr Hammond’s recommendation was that the matter should be referred to at a disciplinary hearing and he noted that the allegations against the claimant were gross misconduct allegations.

 

4.25                The claimant was requested to attend a formal disciplinary meeting on 6 February 2013.  He was given minutes of the investigation, witness statements and an affidavit prepared by Stuart Jackson, a list of the websites visited by him, copies of the Company documentation including copies of the Company handbook, the IT presentation made to all new employees and copies of the training reports for all HR and IT policies.  The claimant was not copied with copies of all the e-mails he had sent himself but the letter recorded that these included weekly reports, engineering technical notes and schematics.  He was advised that if the allegations were found proven his employment may be terminated and he was advised of his right to be accompanied.

 

4.26                The disciplinary meeting ultimately took place on 12 February 2013, due to a meeting being rearranged in the first instance to facilitate the claimant’s Trade Union representative, and in the second instance because of Dr Martin’s work commitments.  Dr Martin raised the issue of the e-mails which the claimant had sent to himself at home.  At the investigation meeting the claimant had been reluctant to discuss these because of the Anton Piller Order against him, but it was clarified that it was in order for him to discuss the matters at the disciplinary hearing.  The claimant again asserted that he had sent documents to himself at home by e-mail in October 2012 to prepare for the first investigation and disciplinary.  When he was specifically asked if he had sought permission, he asserted that he had been asked to “produce evidence”.  He was then asked if all the documents he sent home were for the disciplinary.  His reply was that he had to send all documents home and then screen them at home as there was not enough time to do this at work.  Dr Martin noted that there was a lot more information which the claimant had sent to himself at home, not just about the Monza analyser.  The claimant again asserted that other people sent documentation to themselves at home and he did not see why there was a problem.  It was pointed out again that the claimant needed to seek permission and the same applied to everyone.

 

4.27                In relation to the claimant's use of internet sites, the claimant asserted that he was being victimised and asked who else was being checked.  There was a detailed discussion at the disciplinary on 12 February 2013 in relation to the claimant’s internet usage, including queries being raised regarding his use of banking sites, Facebook, Twitter and eBay.  The claimant again maintained that some of these were “pop up banners” and some were “missed clicks”.  He justified his use of the eBay by saying that he was researching components available on that site although he had been on the site on a number of occasions on the same day.

 

4.28                Dr Martin subsequently met Linda Magee in relation to the claimant’s allegation that there was inconsistency in the operation of the internet policies.  Mrs Magee confirmed to Dr Martin that all other cases involving breach of internet and e-mail policies resulted in those staff members facing disciplinary action.  She indicated that some were dismissed and others put on warnings depending on the nature of the breach.  Mrs Magee indicated at that meeting that she had no knowledge of any other staff members having sent work home.  Dr Martin met the claimant again on 19 February to discuss the day he was suspended, when Dr Jackson indicated that the claimant had attempted to collect and take away Randox documents.  The claimant said that he had lifted documents which he thought were holiday sheets and timesheets and had inadvertently included some Randox documents.  Mr Bertet’s evidence to the tribunal was that, contrary to Dr Jackson’s assertion, there were just a few documents in the bundle and not a considerable number as had been asserted by Dr Jackson.  Dr Jackson noted however that the documents he removed from the claimant's bundle on that day included respondent designs, risk analysis, technical reports and parts descriptions amongst other things, so we are satisfied that there was a significant quantity of company documentation in the bundle the claimant attempted to remove on that day.

 

4.29                The claimant asserted in cross-examination that the documents that he had removed were not confidential.  It was put to him that these documents would be of use to a competitor in that they would give information about Randox products and designs, and that they would assist any competitor who was seeking to make similar products, but he denied all of this.  He was referred to the definition of “confidential information” in his contract of employment and asked to confirm he understood the Company required him to treat the information listed there as confidential.  He maintained these documents were not confidential.  This appeared to be his opinion and he did not appear to understand that the company’s definition of what they treated as confidential was set out in his terms and conditions of employment, and that he was required to follow that definition, rather than his opinion.  We are satisfied on the basis of the evidence we have seen and heard that much of the information the claimant removed fell with the respondent’s definition of confidential information.

 

4.30                At the follow-up disciplinary meeting on 19 February, regarding the documents which the claimant removed on the day of suspension, he initially said that he was planning to look through them and that “this would all be in the court case”.  Dr Martin made it clear that she had not heard about this and that she would consider matters and ask the claimant to wait for a few moments.  The meeting resumed some 10 or 15 minutes later and at this point, the claimant’s trade union representative was not allowed to come into the room.  Dr Martin advised the claimant that even if she would be willing to take his word in relation to his visits to websites in breach of the internet policy, her main cause for concern was the Randox documents which he had sent to himself at home in clear breach of company policy.  She advised him that she could have no further trust in him and as such the only decision she could make would be to dismiss him.  He was advised that he would be given a written decision and that he would have the right to appeal the decision on receipt of the written outcome within five working days.

 

4.31                At the end of that meeting, Lauren Donaghy also spoke to the claimant about the issue of protected disclosures at which he had hinted throughout this process.  The claimant indicated he had raised this many times before and Miss Donaghy advised him at that stage that discussions and concerns raised in meetings in relation to a research project were not protected disclosures.  The claimant was told that if he wished to raise a protected disclosure then he should make his allegations in writing so it could be investigated.  The claimant subsequently e-mailed Miss Donaghy with details of his allegations, to which we return later.

 

4.32                The outcome of the disciplinary meeting was only confirmed to the claimant in writing on 15 March 2013 when he was sent a letter by Lauren Donaghy with Dr Martin’s overview attached.

 

4.33                The claimant appealed the decision to dismiss him and his appeal was heard by Mr Ivan McConnell on 4 April 2013.  The claimant set out a number of grounds of appeal: namely, that he believed he had been victimised as a direct result of raising concerns about the Monza equipment; that he sent work home in order to substantiate his claim regarding the Monza as he did not have time to do this at work; the interview panel did not seek the names of other staff using the internet e-mail system to send personal e-mails nor were other staff interviewed to substantiate the claimant’s claims; the claimant alleged he had accessed banking sites in order to provide the necessary financial details to secure a visa for working in Co. Donegal; the claimant said he had not logged into social networking sites or eBay and felt the charges against him for accessing these sites for personal use were unfounded.

 

4.34                The claimant was accompanied by his trade union representative at the appeal meeting.  At his appeal, the claimant repeated most of the same arguments he had previously made about why he e-mailed company documents to himself at home and internet use.  It was pointed out to him that he himself had received training and had signed the necessary PTRs, indicating agreement to the policy.  It was put to the claimant again that he had no authorisation to send the documents to himself at home.

 

4.35                It is clear from notes of the appeal meeting that the claimant again raised issues in relation to the performance of the Monza analyser and asked whether Stuart Jackson was being investigated because he had raised concerns about the Monza.  When the claimant was asked who he believed was victimising him, he indicated first of all that it was the HR Department and Mr Jackson and that he believed this was because the Monza machine was not working and he had raised concerns about it. 

 

4.36                The claimant also said that he had been pressed by Gill Craig (Lawrence) to sign documents and backdate documents in relation to Monza Set up Jig software in October/November 2012.

 

4.37                The claimant’s complaint was that he said he was being asked to sign off on software which he had not originally written, but which he agreed he had some involvement with.  He said he did not “feel safe” doing this and subsequently said at the meeting that he felt it was “dangerous” to release this software where there were no documented codes, as a previous engineer had not completed the paperwork.  Dr Jackson’s account of this was that the claimant had simply been asked to sign off on his own work, which was normal practice.  He disputed that the codes were not available, as otherwise the claimant could not have amended them.  He also noted that there was a history of the claimant failing to produce paperwork in respect of code work he had done on the Monza software releases for versions 5.0 and 6.0, which had led to Ms Lawrence’s concerns that the paperwork on the Monza Set up Jig should be properly completed.  On balance, we accept the account given by Dr Jackson in this respect:  we are satisfied that the claimant exaggerated any risks in the changes to the Monza Set up Jig software to justify his reluctance to sign off on his own work.  We are also satisfied that this matter, which was not referred to by the claimant at the investigatory meeting or at the disciplinary, played no part in the respondent’s decision to dismiss the claimant.

 

4.38                As a result of the appeal meeting, Mr McConnell had a subsequent meeting with Stuart Jackson and a meeting with Lauren Donaghy.  He also met Dr Kiera Dollin, who was a regular user of the Monza analyser system.  He raised specific questions with her in relation to the functioning of the Monza analyser as a regular user of it.  He noted that the thrust of the claimant’s appeal was that the Monza was a dysfunctional analyser and that the claimant was being victimised for whistle blowing in this respect.  Miss Dollin confirmed that as a regular user of Version 6 of the software she had no issues with the Monza.  When she was specifically asked whether the analyser ever produced a wrong result, she indicated that there had been problems with Version 5 of the software but this appeared to have been corrected on Version 6.  She noted that for some clinical tests and on some channels the tests may display default settings rather than validated settings but she indicated that this should not be an issue as customers should not be using these channels.

 

4.39                Mr McConnell’s conclusion was first of all, in relation to the claim of victimisation by the claimant, he did not accept that Dr Jackson had initiated the search in relation to the claimant’s e-mail use, rather this had been done by Mrs Magee.  Regarding the consistency of enforcing the IT policy, he noted that the search of the claimant’s computer activity was a targeted search as a result of a reasonable suspicion and as a result of the claimant’s own actions.  There was no reason to search the e-mail use of all members of the Department as the claimant had suggested.  Three other individuals were named at the appeal hearing, this was referred to HR and Mrs Magee indicated that these matters had subsequently been investigated.

 

4.40                Regarding sending documents home, Mr McConnell did not accept the claimant’s account of his justification for sending documents home.  First of all, not all the documents he sent home related to the Monza analyser.  Secondly, the claimant was well aware of the strictness of the respondent’s policies.  And thirdly, Mr McConnell accepted Dr Jackson’s evidence that he had previously forbidden the claimant to send some documentation to himself at home.

 

4.41                Regarding internet use, Mr McConnell noted that the reasons provided by the claimant for accessing his bank had altered from the investigation meeting to the disciplinary meeting, and he could see no good justification for the claimant having been on eBay or various other sites.  He also did not accept the claimant's account of the number of “wrong clicks”.  Mr McConnell noted that the confidentiality and internet policies had been explained to every new member of staff and that the claimant himself had signed off on these policies.  He upheld the decision to dismiss the claimant.

 

4.42                The claimant produced a Schedule of Loss, setting out the jobs for which he had applied.  He alleged he had had difficulties in finding other work because once he was dismissed in February, the Home Office was immediately notified by the respondent and took steps to terminate his visa.  The claimant alleged that because he was not given written confirmation of his dismissal until 15 March 2013, his time to remain in the United Kingdom was reduced and by June, when he could have taken up a post with the South-Eastern Regional College (SERC), he was an “overstayer” for visa purposes.  The claimant alleged that the respondent’s delay meant he had lost out in terms of his right to remain in the United Kingdom and also his ability to take up the post at SERC.  The claimant then indicated that he had been successful at interview in some other posts, but had been unable to take them up because the employers concerned had no certificate of sponsorship which would allow them to employ him.

 

4.43                The claimant had appealed against the refusal of the Home Office to renew his visa by way of judicial review.  On cross-examination of the claimant regarding those proceedings, it emerged that he had applied for the job at SERC in November 2012 because, he conceded he “anticipated tensions” in his work with the respondent.  He had not shown the date of this application in the Schedule of Loss, although the dates of other job applications were shown.

 

4.44                However, the claimant confirmed in cross-examination that he understood SERC had applied for a certificate of sponsorship in January 2013, but in fact they only applied in April 2013.  This certificate was needed by an employer wishing to employ certain foreign nationals.  That application was rejected as incomplete and a further application was rejected on 17 July because the correct fee had not been paid.  It was also put to the claimant that the Home Office only wrote to him regarding his dismissal on 26 March, and he was told by them that he could stay in the country until 25 May.  He agreed this was the case but denied that he had misled the tribunal.  We find as a fact that the reason the claimant was unable to take up work with SERC promptly after his dismissal was not due to any action of the respondent in notifying the Home Office, but rather was due to the delays and errors of SERC obtaining a certificate of sponsorship, none of which were the respondent’s fault.   We find the claimant’s evidence in this regard misleading and unsatisfactory.

 

4.45                The claimant also suggested that he needed to remain in this jurisdiction to deal with ongoing High Court proceedings.  It transpired that the relevant proceedings were in fact completed, and there was accordingly no reason in that  regard for the claimant to remain.  While this is not relevant to the issues before us, it is relevant to the claimant’s credibility.

 

4.46                Public interest disclosures

 

                        The claimant was asked by Lauren Donaghy at the end of his disciplinary meeting to provide details of the public interest disclosures he had made.  She subsequently emailed him the same day asking for details of the protected disclosures he had “hinted about”.  The first email from the claimant in reply asked for a transcript of meetings as he could not recall any “protected disclosures”.  He went on to say that if she was trying to say that she was not aware of the issues he had raised about Monza Clinical Analyser or concerns regarding openness of information then he referred her to all the documentation which had occurred.  He also referred her to the “Public Interest Disclosure Act”.

 

4.47                The following day Lauren Donaghy emailed him again asking for full details of the alleged protected disclosures.  The claimant emailed her back 1½ hours later, referring to his concerns about the Monza analyser, the fact that he had been disciplined about this and the documents which he had sent to Stuart Jackson.  He went on to say “the issues were raised at the appropriate meetings, emails, weekly reports and disciplinary meetings and as long as those fail to be reacted to, they are going to be raised in High Court and publically”“(sic)”.  He reminded her that all of the necessary documentation was in Randox’s archive.

 

4.48                Mrs Magee investigated the claimant’s allegations, going through the weekly reports to which the claimant had referred.  She also spoke to Doctor Jackson, who confirmed that the claimant had not at any time raised health and safety concerns over the Monza Analyser with him.  The comments which had been made by the claimant in the minutes of the meeting on 2 October (as set out above) were that there were errors in the original software, he was critical of those who had written it, and he suggested the software needed to be completely rewritten.  As far as saving data was concerned, it was noted that only a few machines were affected and it was an intermittent problem.  At the tribunal, the claimant asserted that the health and safety connection with his concerns was that the analyser concerned was used to carry out medical tests and therefore any difficulty with that machine must raise health and safety concerns.  Mrs Magee’s investigations indicated that there was a memory problem with stored data on a small number of Monza analysers, but this would not affect diagnosis as the sample code and result were always displayed together.  Mrs Magee spoke to Yvette Millar, who had been present at the meeting on 2 October.  Mrs Millar said she heard the claimant refer to software as requiring to be rewritten but she did not ever hear him expressing health and safety concerns.  Mrs Magee’s conclusion was that the claimant had been asked to work on the Monza Software because there were known issues with it.  She reached the conclusion that the issues were broadly discussed and widely known but were not deemed to create a health and safety risk by anyone, including the claimant.  The claimant only started to raise these issues once he had been disciplined after the first disciplinary event.

 

4.49                Mrs Magee wrote to the claimant on 9 April, setting out the requirements for a public interest disclosure, that the claimant had not raised the issue until after disciplinary action had been taken and that despite her search through documentation, she had been unable to find any document or minute of meeting which indicated that the claimant had expressed any particular concerns regarding the Monza.  Accordingly, she found that there was no substantiating evidence to the claimant’s allegations.

 

5.                     THE RELEVANT LAW

 

5.1                   Unfair Dismissal

 

                        The relevant law in relation to unfair dismissal is to be found in Articles 126 and following of the Employment Rights (Northern Ireland) Order 1996 (as amended).  In particular we refer to Article 130 which provides as follows:-

 

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

 

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

 

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

 

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

 

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

 

                                                (b)       relates to the conduct of the employee

 

                                                (ba)     is the retirement of the employee;

 

                                                (c)        is that the employee was redundant or;

 

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

 

5.2                   The representative for the respondent referred us to a number of authorities in relation to this matter.  The leading authority in Northern Ireland is the case of Patrick Joseph Rogan  v  South Eastern Health and Social Care Trust [2009] NICA 47.  Like the present case, that case related to a case of alleged misconduct on the part of the claimant for which he was subsequently dismissed for gross misconduct.

 

5.3                   The Court of Appeal considered the case law and in particular the previous decision of the Northern Ireland Court of Appeal in Dobbin  v  City Bus Limited where they approved the decisions of the Court of Appeal of England and Wales in British Home Stores  v  Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd  v  Jones [1980] ICR 17 as refined and explained in the judgments of Lord Justice Mummery LJ in Foley  v  Post Office and HSBC Bank plc (formerly Midland Bank plc)  v  Madden [2000] ICR 1283 and Sainsbury’s Supermarkets Ltd  v  Hitt [2003] ICR 111.

 

5.4                   The nub of the test which must be applied in such cases is to consider whether an employer has met a three stage test as stated by Arnold J in British Home Stores:-

 

                        “First of all there must be established by the employer the fact of that belief (i.e. the belief in the misconduct); that the employer did believe it.  Secondly, that the employer had in his mind reasonable grounds on 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 two 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 on the basis of being “sure” as it is now said more normally in a criminal context, or, to use the 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, the conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.” 

 

5.5                   The Court in Rogan cited further with approval the opinion of Lord Carswell in Re D [2008] UKHL 33 where it is noted that the more serious the allegation, the greater the need for more cogent evidence to overcome the unlikelihood of what is alleged.  While bearing in mind that the standard of proof required in a civil case was finite and unvarying, Lord Carswell indicated that there may be situations which make heightened examination necessary, for example, given the seriousness of the allegation to be proved or in some cases the consequences which could flow from acceptance of proof of the relevant fact.  This approach has been endorsed recently by Lord Justice Elias in his detailed judgment in the case of Turner  v  East Midland Trains Ltd [2012] EWCA Civ 1470.  At the start of his judgment Lord Justice Elias restated the established principle, that an employment tribunal has to determine whether an employer has acted fairly within the meaning of the English equivalent of Article 130 of the Employment Rights (Northern Ireland) Order 1996 by applying what is colloquially known as the “band of reasonable responses” test.  He repeated that it was not for the tribunal to substitute its own view for that of a reasonable employer.  He made two important observations about the test.  The first was that it must not be confused with the classic Wednesbury test, whereby a court can interfere with a substantive decision of an administrator only if it is perverse.  The second observation is that it is relevant to have regard to the nature and consequences of the allegations which are all part of the circumstances of the case.  It was also noted in Sainsbury’s Supermarkets Ltd  v  Hitt [2003] IRLR 23 by the Court of Appeal in England and Wales found that the “band of reasonable responses” test does not simply apply to whether the sanction of dismissal was permissible.  It bears on all aspects of the dismissal process including whether the pre-dismissal investigation was fair and appropriate.

 

5.6                   The claimant made allegations of procedural unfairness which we consider further below.  The relevant legislation in relation to this matter is to be found in Article 130A of the 1996 Order which provides as follows:-

            

                        “130A (1)       An employee who is dismissed shall be regarded for the purpose of this part as unfairly dismissed if:-

 

                                                (a)       one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal.

 

                                                (b)       the procedure has not been completed; and

 

                                                (c)        the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

 

                                    (2)       Subject to paragraph (1), failure by an employer to follow procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employers action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.”

 

5.7                   In this case there is no question that the three-stage Statutory Disciplinary and Dismissal Procedure was followed by the employer.  The claimant was notified of the allegations made against him, a disciplinary meeting was held, he was notified of the outcome and given the opportunity to appeal.  The question is whether the overall procedure was fair and reasonable. 

 

5.8                   Public Interest Disclosures

 

                        The relevant legislation in relation to public interest disclosures is to be found at Article 67 of Part VA of the 1996 Order.

 

5.9                   So far as is relevant to this case, the relevant provisions are at Articles 67A, 67B and 67C, which provide as follows:-

 

                        “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 a reasonable belief of the worker making a disclosure, tends to show one or more of the following:-

 

                                                ....(d)   that the health and safety of any individual has been, is being or is likely to be endangered....

 

                        67C  (1)          A qualifying disclosure is made in accordance with this Article if the worker makes a disclosure in good faith  -

 

                                                (a)       to his employer; or

 

                                                (b)       where the worker reasonably believes that the relevant failure relates solely or mainly to  -

 

                                                            (1)       conduct of a person other than his employer; or

 

                                                            (ii)        any other matter to which a person other than his employer has legal responsibility, to that other person.

 

                                 67G        (1)       A qualifying disclosure is made in accordance with this Article if  -

 

                                                (a)       the worker makes a disclosure in good faith;

 

                                                (b)       he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true;

 

                                                (c)        he does not make the disclosure for purpose of personal gain;

 

                                                (d)       any of the conditions in paragraph (2) is met; and

 

                                                (e)       in all the circumstances of the case it is reasonable for him to make the disclosure.”

 

5.10                We were referred to a substantial body of case law on the issue of public interest disclosures.  We were also referred by Mr Algazy to the case of Kuzel  v  Roche Products Ltd, reported as to the decision in the Employment Appeal Tribunal at [2007] IRLR 309 and affirmed by the Court of Appeal in England and Wales and reported at [2008] IRLR 530.  The judgment dealt with the approach to be applied in a case where the claimant has been dismissed and argues that the reason for the dismissal was that he/she had made a protected disclosure under the public interest disclosure provisions of the 1996 Order.  We set out below the relevant extract from the EAT Decision in this case having substituted the references to the English legislation with the appropriate references to the Northern Ireland legislation.

 

5.11                His Honour Judge Peter Clarke states the following at paragraphs 22 and following of the judgment:-

 

                        “In cases of “ordinary” unfair dismissal dealt with in [Article 130] it is for the employer to show that his reason for dismissal is one of the potentially fair reasons set out in [Article 130(2)] or [Article 130(1)(b)]  -  some other substantial reason.  As the tribunal correctly observed (reasons paragraph 13) it is for this purpose for the respondent employer to show the reason for dismissal.

 

                        “However, [Article 134A] says nothing about the burden of proof.  It is how the tribunal approaches the burden of proof where conflicting reasons are advanced before it that forms the nub of this appeal. 

 

                        “(At paragraph 34) Miss Downing’s starting point is the observation by his honour Judge McMullen QC... that “whistle blowing is a form of discrimination claim” (see Lucas  v  Chichester [2005] ALL ER(D) 92)...  Seizing on his H H J McMullen QC’s observation that whistle blowing is a form of discrimination, Miss Downing submits it therefore follows that, in deciding the conflicting reasons issue, if the tribunal reject the respondent’s reason, they should apply the reverse burden of proof in discrimination cases discussed in the Court of Appeal Judgment in Igen  v  Wong [2005] IRLR 258.  This is the “new point” raised in this appeal..

 

                        “However we do not read that part of the judgment as constituting an endorsement of the Igen approach in a [Article 134A] case.  On the contrary, it was unnecessary for the Court to decide the point because the facts satisfied the test contended for by the claimant.  Thus, as counsel before us agree, the point now arises before us for determination...”

 

                        After discussing the case law in relation to the question of the burden of proof, Judge Peter Clarke QC continued at paragraph 47:

 

                        “Reverting to the Maund test, applicable to Article 134A dismissals, we would formulate the approach to be applied on the findings made by the tribunal in this case as follows:-

 

                        (1)       Has the claimant shown that there is a real issue as to whether the reason put forward by the respondent, some other substantial reason, was not the true reason?

 

                        (2)       Has she raised some doubt as to that reason by advancing the [Article 134A] reason?

 

                        (3)       If so, has the employer proved his reason for dismissal?

 

                        (4)       If not, has the employer disproved the [Article 134A] reason advanced by the claimant?

 

                        (5)       If not, dismissal is for the [Article 134A] reason.

 

                                    In answering those questions it follows:-

 

                                    (a)       that failure by the respondent to prove the potentially fair reason relied on does not automatically result in a finding of unfair dismissal under Article 130;

 

                                    (b)       however rejection of the employer’s reason, coupled with the claimant having raised a prima facie case that the reason is a [Article 134A] reason entitles the tribunal to infer that the [Article 134A] reason is the true reason for dismissal; but

 

                                    (c)        it remains open to the respondent to satisfy the tribunal that the making of the protected disclosures was not the reason or the principal reason for dismissal, even if the real reason as found by the tribunal is not that advanced by the respondent;

 

                                    (d)       it is not at any stage for the employee (with qualifying service) to prove the Article 134A reason.”

 

6.                     REASONS AND DECISION

 

6.1                   Mindful of this guidance, we have found it helpful to consider these questions, in reaching our conclusions in relation to this case.

 

                        (1)&(2) Has the claimant shown that there is a real issue as to whether the reason put forward by the respondent, i.e., gross misconduct for breach of the company’s IT and computer policies, and removal of confidential documentation to his home, was not the true reason?  Has he raised some doubt as to that reason by advancing the Article 134A reason, i.e., that he made a protected disclosure?

 

                                    In this case, the claimant was adamant that the reason he had been disciplined by the respondent was because he had raised issues in relation to the performance of the Monza analyser.  It was accepted that in a number of reports to Dr Jackson prior to October 2012, the claimant had raised issues in relation to the functioning of the software program for the Monza.  Indeed, it was the claimant’s responsibility to see how that software could be improved, and he was working on Version 6 of the software for the Monza which was an established, indeed (according to some of the respondent’s witnesses), an older machine.  In considering whether or not the claimant has shown there is a real issue that the reason put forward by the employer was not the true reason, we have to consider the context in which the claimant has raised this allegation and also the content of the allegation.

 

6.2                   Dr Jackson indicated that there had been a history of the claimant criticising other colleagues’ work and that he had spoken to him informally in relation to this matter on a number of occasions.  It was not part of the case before us, but the claimant certainly felt that he had been unfairly treated when spoken to regarding an incident involving Anthony Higgins where the claimant referred to him having some “psychological conditions”.  The meeting on 2 October was however a different matter.  There were individuals there from a different department, namely the Sales Department, who are viewed in Randox terms as “internal customers”.  While the claimant was clear that he was to report any difficulties in terms of the Monza to his superiors within the Engineering Department, and work with them on trying to find solutions for those problems, he does not appear to have appreciated that there was an element of professional etiquette in not discussing engineering issues outside the Department.  At the investigation meeting into the comments he made on 2 October, the claimant said that he did not know who Graeme McNeill was when he came to the meeting.  Before us at the tribunal, he indicated that he had checked out Mr McNeill’s identity on the company’s website, but he was not clear as to whether he had done this before or after the meeting.  He also stated that Mr McNeill had said at the meeting he was from Sales, so we are satisfied the claimant knew Mr McNeill was not from his own department.  The claimant’s lack of perception in relation to this matter is illustrated by his own written statement where he indicates that Mr McNeill raised various questions about the functioning of the Monza software and was pleased with the claimant’s response.  It was however Mr McNeill who raised the issues about the inappropriateness of the claimant’s comments, leading to the investigation and the claimant ultimately being disciplined.  It is notable however that in deciding on the outcome of the first disciplinary procedure, Gill Craig noted that the claimant was working in his second language, allowed for the fact that some of his comments might appear blunter than was actually intended and suggested that the claimant needed to brush up on his “professional etiquette”.  This should have sent a clear signal to the claimant that his manner and the way he approached his colleagues needed to be reconsidered by him.  Unfortunately, the claimant does not appear to have taken this on board.  Repeatedly in the notes of the investigation meetings and the disciplinary meetings, the claimant does not accept that it is inappropriate for him to make personal criticisms of colleagues, his answer was that he was simply “stating the facts”.

 

6.3                   It was the claimant’s case that because he had raised issues in relation to the “functionality” of the Monza analyser and highlighted what he saw as shortcomings with its software, and the Monza analyser was used in carrying out medical tests, that this was a health and safety issue.  This is not explicit from the notes of the meeting nor did the claimant produce to us any documents where he had specifically raised this as a health and safety matter.  When the issue of the protected disclosure was ultimately investigated by Linda Magee following the claimant’s dismissal, she went to some lengths to check the position both by going through the reports which the claimant had sent to Stuart Jackson, the notes of the meeting on 10 October and by checking on the actual position with both Mr Jackson and other users of the Monza system.  She did not accept that there was any risk to health and safety nor did she find that the claimant had raised this as a specifically health and safety matter at any time during his employment.

 

6.4                   Indeed the claimant seemed to completely misunderstand the reasons for the disciplinary having been raised in relation to his comments on the meeting of 2 October to the extent that he believed (he said) that he had been asked to provide evidence to justify his comments in relation to the Monza software.  This was clearly not the fact, and we cannot see how the claimant could have misunderstood this, given the record of the investigatory meeting, where the reasons for concern were explicitly explained to him.   The claimant’s approach at this meeting, at all subsequent meetings and indeed at the Industrial Tribunal displayed to us a blinkered approach on his part.  In his world, things are either black or white and if he has a particular viewpoint, it will be impossible to sway him from it.  This was apparent to the tribunal in the number of times we attempted to give him direction as to how he should proceed.  He would reply “I understand” and then revert to doing exactly what he had been directed not to do.

 

6.5                   There is no doubt either that following the disciplinary meeting in November 2012, the relationship between the claimant and Stuart Jackson deteriorated.  Dr Jackson indicated in his statement that the claimant had refused to accept the outcome of the disciplinary meeting without argument and that his behaviour subsequent to the verbal warning seemed to show that he did not admit any wrongdoing.  He added, “In my opinion the claimant following this became more argumentative and difficult to manage.”  It was clear to us at tribunal from the demeanour of Dr Jackson towards the claimant and the claimant towards Dr Jackson, that there was no love lost between the two.  Dr Jackson gave cryptic and on occasion totally unhelpful answers to questions put by the claimant and it was clear to us that the claimant became rather agitated by the response from Dr Jackson.

 

6.6                   If one takes the events of the Autumn of 2012  -  the meeting on 2 October 2012, the following disciplinary process and the claimant’s constant e-mailing of HR to try and clarify the procedures in relation to a discussion of engineering issues outside the Department  -  it does seem that the relationship between the claimant and his employers had suffered considerably.  On the basis of the evidence we have received we are satisfied that the claimant’s position with his employer had been weakened by his outspokenness at the meeting on 2 October and his refusal to accept the verbal warning after the first disciplinary process, but not because he had made a protected disclosure.

 

                        In answer to Questions 1 and 2, it is our finding that the claimant has not shown that there is a real issue as to whether the reason put forward by the respondent (i.e., gross misconduct for breach of the company’s IT and computer policies and removal of company documentation to his home) was the true reason for his dismissal.  In our view, he has not raised some, or any, doubt as to that reason by advancing the case that he made a protected disclosure for one straightforward reason:  we do not accept that the claimant made a protected disclosure.  He raised already known concerns about the functioning of the Monza analyser, but at no time before the disciplinary procedure which led to his dismissal did the claimant raise health and safety concerns about it.

 

                        (3)       If so, has the employer proved his reason for dismissal?

 

                                    Even given our answers to Questions (1) and (2), we still have to consider whether or not the employer has proved that there was a fair reason for dismissal.  The claimant was disciplined and ultimately dismissed for gross misconduct, that is breach of the company’s IT policies.

 

6.7                   The claimant had been trained on IT policies at his original induction when he joined the respondent company.  He had also been provided with the Company Handbook and copies of the appropriate policies which we have set out at paragraphs 4.11-4.18 above.  Further, the claimant was aware that his role as a software engineer was in the research and development department of the company.  If he was not aware that the work he was engaged on was confidential and commercially sensitive, then he certainly should have been.  There is absolutely no excuse for his ignorance in relation to this matter as it was clear from the policies followed by the company from the outset.  At one point in the hearing, the claimant asserted that various documents which he had e-mailed to himself at home and which he intended to use at his November disciplinary hearing were “not confidential”.  When he was referred to his contract of employment, and the list of documents which the company deemed to be confidential, he disputed this, saying that they were not really confidential.  The claimant did not accept that it was for the respondent to stipulate what company information was deemed to be confidential, and for him as an employee to obey their instructions in relation to this matter.  This attitude  -  indicating that he knew better than his employers and was not subject to their direction  -  was also apparent in his demeanour at the hearing, when being cross-examined and towards the tribunal.

 

6.8                   The claimant did not dispute at any time that he had removed documentation from the company’s premises.  Rather it was his argument that he had been obliged to send documentation to himself at home because he did not have time to consider it at work and secondly, that he had been instructed at the investigatory meeting to produce evidence of his allegations in relation to the Monza analyser.  We do not accept the claimant’s contentions in relation to this matter.  We find that he understood perfectly well why he was being challenged in relation to his behaviour at the meeting on 2 October.  We believe that it was due to a mixture of his lack of perception, his stubbornness and his intellectual arrogance that he dismissed the employer’s concerns in this regard.

 

6.9                   In relation to the breach of the internet policy, the claimant’s arguments seem to be that he was using various websites for work purposes, although in some cases this was difficult to believe given that the sites included Facebook, a weapons site and other social networking sites.  While Dr Jackson agreed that on occasion there would be helpful tutorials on websites and blogs such as YouTube, and some of the Russian sites which the claimant visited, it does not explain the number of visits to travel sites, social networking sites and online banking sites during working hours.  Both Mr Hammond and Dr Martin found it difficult to accept that the claimant could have carried out so many “wrong clicks” given his level of computer skills.

 

6.10                The claimant argued that he had been instructed by Dr Jackson to provide information in relation to a possible visa application.  He took this as permission to go on the Halifax banking website to obtain copies of bank statements.  Dr Jackson emphatically denied that he had given permission for the claimant to go on the internet banking website, indeed he pointed to an occasion where he had specifically seen the claimant on such a website during working hours and had told him that this was not allowed.  We also note that while the claimant alleged that Dr Jackson had given him this instruction, and therefore in his view permission to go on the website at the disciplinary meeting, he had given a different account at the investigatory meeting.  In our view, the claimant’s account of these incidents is not credible, given the variations in his story and we accept Dr Jackson’s account of these events.

 

6.11                When Dr Martin was asked by the tribunal how she viewed the various allegations made against the claimant, she said she considered the claimant sending documentation to himself at home as being the most serious matter.  When the claimant was suspended on 15 January 2013, Dr Jackson realised that the claimant was intending to take home a bundle of documents amongst which he found confidential items such as details of the respondent’s designs, risk analysis technical reports and parts descriptions.  Following the search of the claimant’s home, other documents were recovered, and Dr Jackson went through these documents to clarify their content and provided a report to the disciplinary investigation.  Therefore in response to the third question, it is our finding that the respondent has clearly demonstrated the reason for dismissal was the claimant’s misconduct.

 

6.13                We note, as clearly set out in the established case law, that it is not for the tribunal to rerun the disciplinary procedure nor to substitute its view for that of the disciplinary authority.  However it is our view that in this case, the employer carried out a fair and thorough investigation leading to a fair disciplinary procedure at which the claimant was entitled to be heard.  He had every opportunity to prepare both for the investigation and for the disciplinary procedure, which was delayed to facilitate his trade union representative.  Dr Martin not only heard the claimant on one occasion but went back to him to discuss matters which had not been covered in her original meeting.  We are satisfied that on the basis of the investigation and the disciplinary hearings, the employer formed a reasonable belief that the claimant had committed the acts of gross misconduct for which he was disciplined.  We are also satisfied that the appeal conducted by the respondent was thorough.  The grounds of the appeal raised by the claimant, which included victimisation, the allegations which claimant had made about the Monza analyser and how he felt he had been mistreated because of the issues he had raised about it, were thoroughly investigated by Mr McConnell.  Accordingly we find that the decision to dismiss the claimant fell within the band of reasonable responses open to the respondent and was fair.

 

6.14                There are two matters in relation to the process followed by the respondent which we believe do not conform with best industrial relations practice.  The first relates to the disciplinary meeting where the respondent’s HR representative refused to allow the claimant’s trade union representative into the room when the claimant was being informed of the outcome of the disciplinary hearing.  This appears to have been a unilateral decision on the part of the Human Resources representative.  We find it inappropriate for a Human Resources representative to exclude a trade union representative from the final part of the meeting.  An employee in that situation is likely to be distressed and apprehensive as to what the outcome of the meeting will be.  His trade union representative, having been there to accompany him throughout the disciplinary meeting, should be allowed to go into the final part of any meeting if that is the employee’s wish.  In such a situation the employee is likely to be confronted by at least one member of management, and in this case, two.  The presence of the trade union representative, if for no other reason than moral support, would be a valuable assistance to the employee in this context.

 

6.15                Secondly, the claimant was understandably upset that, having been informed on 19 February 2013 that he was being dismissed, he did not receive a formal letter of dismissal from the respondent until 15 March 2013.  In cross-examination, Dr Martin’s excuse for this was that she had been diverted onto important work that she described as “an urgent project” in her statement.  The dismissal letter did not go out until 15 March, and although the claimant was given an extension of appeal time so he was not prejudiced in this regard, it meant that he was effectively in limbo for a period of 24 days.  He raised the issue that the Home Office had been notified by his employer of the termination of his employment and this therefore could have implications in relation to his visa.  While we have indicated above that we found the claimant’s evidence on this point unsatisfactory, we think the fact that the claimant was left in this state of uncertainty and was unable to progress his appeal until he had formal notification of dismissal from his employer left him in a very difficult position.  The respondent should have made sure that the disciplining officer, once appointed, had appropriate time allowed to ensure that her report would be completed promptly so that the claimant would be able to progress to the next stage of the disciplinary procedure.  With the appeal pending, while the claimant was clearly already seeking alternative employment, he was in some difficulty as to the next appropriate stage.

 

6.16                We have considered whether these matters taint the entire procedure in such a way as to render the dismissal unfair.  We have considered carefully the provisions of Article 130A(2) of the 1996 Order, which provides that even where the elements of the statutory disciplinary and dismissal procedures have been followed (as in this case), failure by an employer to follow any other procedure in relation to the dismissal of an employee shall not be regarded as by itself making the employer’s action unreasonable if he shows he would have decided to dismiss the employee even if the procedure had been followed.  In this case, we believe that the presence of the trade union representative at the final dismissal meeting would not have changed the outcome.  The union representative was present throughout the disciplinary hearing and so was able (and did) do his best to represent and support the claimant throughout that process.  His presence at the dismissal meeting would not have made any difference to the decision to dismiss in our opinion.

 

6.17                In relation to the delay in furnishing the dismissal letter, we do not believe that this would have made any difference to the outcome either.  The claimant was allowed the opportunity to appeal and was given the appropriate length of time to do this.  Accordingly, we find that the outcome would not have been changed if the decision letter had gone out more quickly.  These are matters however which we strongly recommend the respondent should review in light of the size of their enterprise and the number of employees they engage.

 

6.18                In light of our answers to Questions 1, 2 and 3 under the Kuzel guidelines, it is not necessary for us to answer Questions 4 and 5.  It is our finding that the claimant was fairly dismissed for the reasons given by the employer and that he was not shown any real issue that the reason for dismissal was because he made a protected disclosure.  Accordingly, the claimant’s claims will be dismissed.

 

 

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing:      3 to 7 March 2014 and 11 and 12 March 2014, Belfast.

 

 

Date decision recorded in register and issued to parties: