Rukhsana Pasha v The Home Office [2026] EAT 42

[2026] EAT 42Case No EA-2023-001064-JOJ
EMPLOYMENT APPEAL TRIBUNAL
Venue Rolls Building, Fetter Lane, London, EC4A 1NLDate 17 March 2026
Before
HIS HONOUR JUDGE BARKLEM
Between
MS RUKHSANA PASHAAppellant- and –
Between
THE HOME OFFICERespondent
Ms Leslie Millin for AppellantMr Tom Kirk (instructed by TLT LLP) for RespondentHearing Hearing date: 18 December 2025
JUDGMENT
[1]This is an appeal against the decision of an employment tribunal at Watford, Employment Judge Burns sitting alone, (“the tribunal”) following a two day hearing in June 2023. In this judgement, I shall refer to the parties as they were before the employment tribunal.[2]The claimant was represented below by Mr Imtiaz Aziz, described in the preamble to the written reasons as the claimant’s “friend”. I understand that Mr Aziz has appeared in other employment related matters in which he is described as a consultant or representative.[3]The claimants claim of unfair dismissal failed and was dismissed. Grounds of appeal were settled by Mr Aziz running to 15 separate grounds, with detailed written submissions containing 192 paragraphs over 31 pages.[4]The appeal was rejected in its entirety on the sift by HHJ Beard. However, following a Rule 3(10) hearing in October 2024 Judge Stout permitted the matter to proceed to a full hearing on the following limited grounds, which I cite in full from the reasons accompanying her order, to make clear precisely what remains live in the appeal. “Ground 4 – Failure to have regard to the ACAS Code of Practice on Disciplinary and Grievance Procedures – It is arguable that the judge erred in law by failing to have regard to the Code of Practice, in particular paragraphs 6 and 9 thereof, and in failing to deal with the submissions that the claimant made about breaches of the Code. The Code is a mandatory consideration relevant as it arguably was here: section 207 TULR(C)A 1992. Although the Tribunal has gone some way to addressing the substance of the requirements of the Code in its judgment, it is arguable that the failure to have regard to the Code was material because if the Tribunal had properly focused on the requirements of the Code, it might have placed more weight on procedural defaults alleged by the claimant in its overall assessment of reasonableness. Ground 5 – Failure to inform the claimant of the allegations against her - It is arguable that material unfairness arose as a result of Mr Wilkinson’s failure to share the Newbould/Edwards evidence with the claimant before reaching a decision for the reasons set out in more detail at paragraphs 51-78 and 143-145 of the claimant’s Skeleton Argument for this hearing (together with paragraphs 147-151 which set out why the appellant says the failing was not ‘cured’ by the appeal). In particular, it is arguable that the Tribunal erred in characterising this evidence as a ‘nil return’ rather than substantive evidence that was relied on to prove guilt. (Ground 5 is not otherwise arguable. In particular, it was open to the Tribunal to conclude at [115] that the inclusion of the 2010 Aktar email allegation in the dismissal letter was a ‘make-weight’ point that would have made no difference to the substantive outcome (given that it was one of five allegations and evidently not the most serious). However, the claimant’s complaint about the inclusion of the 2010 Aktar email allegation in the letter without her having been given notice of that allegation, is relevant to Ground 4 (dealing with fairness of procedure) and Ground 11 (dealing with good faith of the decision-maker) and may be relied on in relation to those grounds.) Ground 7 – Failure to provide reasons for and/or take into account when considering fairness that Mr Wilkinson had not dismissed another employee for similar breaches (Post Office v Fennell) – The fact that Mr Wilkinson considered the other employee had been guilty of fewer breaches is recorded at [69] of the judgment, but the circumstances of the other case are not apparently considered by the Tribunal beyond that. The further reference to it at [135] provides no reasoning on this issue and the point is not mentioned in the conclusions on reasonableness. (Permission was refused in relation to the other 10 comparators on the basis that the Tribunal’s reasons at [134]-[144] as to why it was within the range of reasonable responses for the employer not to investigate these other comparators were adequate and not arguably perverse.) Ground 11 – Failure to give reasons for rejecting the claimant’s case that Mr Wilkinson was acting in bad faith, was prejudiced and biased – This ground is arguable because at [98] the Tribunal has stated that it was ‘not in dispute’ that the employer genuinely believed the claimant was guilty of gross misconduct. As such, it is arguable that the Tribunal has misunderstood and/or failed to deal with a major plank of the claimant’s case. Ground 13 – Delay (A v B [2003] IRLR 405, [65]-[70]) – The Tribunal deals with delays at [121]-[127] and [150]. In this case, the respondent had itself not discovered the breaches until between three and seven years after they happened, and thereafter delayed even beginning to deal with them for another nine months (between the audit and the investigation), took a further 10 months to complete the investigation report and nigh on a further year to complete the disciplinary proceedings. The Tribunal considers the reasons for each period of delay in the process and the specific impact of those delays on the quality of the evidence and the claimant’s health at [121]-[127] and [150]. I consider it arguable, however, that the Tribunal has in those paragraphs lost sight of the larger picture, which arguably needs to include consideration of whether the delays in and of themselves rendered it outside the range of reasonable responses to dismiss the claimant rather than adopting a lesser sanction such as final written warning. It is arguable that the Tribunal needed to consider whether the delays undermined the respondent’s view of the seriousness of the claimant’s conduct. Grounds 10 & 12 – Errors in findings of fact – Of the many points advanced under these headings, the point that I at the hearing considered to be (just) arguable is addressed by the claimant at paragraphs 98-117 of the Skeleton Argument. As I understand it, the point is in summary as follows: the claimant was dismissed for breaches of the respondent’s policy that its IT systems and databases should not be accessed “without a legitimate business need”. The claimant’s argument was that she did have a “legitimate business need” for looking up the family members/other connected people because she was in fact investigating immigration breaches and when breaches were found she reported them. Given that immigration enforcement was what the claimant was employed to do and is the business of the Home Office, she argues her look-ups were in pursuit of a “legitimate business need”. This point led Mr Miah at the investigation stage to conclude that there was ‘no case to answer’ in relation to the 2017 “look-ups”. While it is likely that the Home Office has a policy prohibiting employees from investigating family members or connected people for ‘conflict of interest’ reasons, if there is such a policy, the claimant was not charged with breaching that. Although it may be considered at the full hearing that the Tribunal has adequately addressed this argument of the claimant’s at [100]-[109], it seemed to me to be arguable that the Tribunal failed to address the claimant’s point about the mismatch between the charge and her conduct.”[5]Although Mr Imtiaz appeared at the 3(10) hearing, described as a “Representative” he did not appear before me, the claimant being represented by Mr Millen of counsel. Mr Kirk of counsel, appeared both below and before me. I did not have the skeleton argument referred to by Judge Stout before me, rather a much more succinct one submitted by Ms Millen. I will refer only to the arguments as advanced at the hearing.[6]The background to the case is relatively straightforward. The claimant had been employed as an immigration enforcement officer from 1991 to February 2022, when she was dismissed. Among other things the Home Office operates a UK Visa Central Reference System, known as CRS. Following an investigation in 2020 it was determined that the claimant had carried out searches using the CRS system and had viewed personal data through Home Office systems between June 2006 and August 2017. One such look-up was of a customs official in Pakistan, by the name of Aktar, who was an old school friend of the claimant. Others were of people whom she was sponsoring for the purposes of immigration into the UK.[7]In June 2013 it had been made clear to all staff that there would be a zero tolerance policy of misuse of Home Office systems including viewing data in relation to individuals other than as part of an officer’s legitimate business need. The tribunal set out the policy at para 16 of its reasons, including the following:
“Inappropriately looking up information is considered gross misconduct. Robust action including dismissal and in more serious case cases prosecution will be taken against those who are found to have accessed records without a legitimate business need”
[8]Between June and August 2013 the claimant made numerous look ups in relation to her in-laws. The tribunal recorded at paragraph 20 that at the time she was suffering from a difficult home life and was estranged from her second husband and his relatives who were mistreating her.[9]In 2015, the claimant carried out searches on the CRS on relatives of a junior work colleague of hers, at the request of that colleague.[10]In 2017, the claimant looked up or attempted to look up at least two of the same relatives using a wildcard name search. It was apparently not possible to access the records that she intended to.[11]On 2 and 3 August 2017 the claimant sent an email to an enforcement department and one of her managers, an immigration inspector, reporting that one of the relatives of the work colleague involved in the 2015 and 2017 look-ups was on his way to the UK with the intention of working at a Sikh temple. She also made notes on the CRS records of two of the relatives of her work colleague.[12]The searches were detected in late 2020 and an audit was carried out by Mr. Newbould. The claimant was suspended from work on the 1st of March 2021 and Mr Wilkinson appointed as the decision manager in relation to the claimant’s case. The claimant was notified of that investigation in a letter which made clear that although breaches were alleged to have taken place from the 25th of June 2006 until the 3rd of August 2017, some 6 searches were made and 20 records viewed after the announcement of a zero tolerance policy in June 2013.[13]Mr. Wilkinson appointed Mr. Miah to investigate the claimant’s conduct, specifically asking him to look at incidents that occurred between June 2013 and the present, and asking for bhis view whether there was a case to answer.[14]Unfortunately, Mr. Miah’s investigation strayed beyond his remit and a number of questions were asked of the claimant in relation to the period 2006 to 2012. The questions were put in writing because the claimant’s mental health had deteriorated and she was signed off with stress from the 1st of April 2021.[15]At paragraph 37 and following of the reasons the tribunal noted the following:37. Her answers, about the breaches which subsequently were given as the reasons for her dismissal, were as follows:38. In relation to the email communications with Aktar in 2010 she stated:
“To inform his counterparts with NCA and authorities at Felixstowe and Pakistan… It is unthinkable for me to do such a thing without telling my seniors. Also, with such a long passage of time, I am unable to recall the name of manager. However, I have had mentioned him to a couple of my managers and colleagues.” 39. In relation to the 2013 look-ups of her second husband’s in-laws she stated “I wanted to make an allegation against them because they were coming in on holiday and in fact were selling goods; almost certainly houses and flats too. Also, Shoaib came once for a job interview. So, I wrote anonymously to the Home Office telling them what they were doing.’ 40. In relation to the 2015 and 2017 look-ups of the relatives of Kuljit Jeetla, the following exchange took place (C’s answers given in italics): “Were you doing searches on CRS on behalf of Kuljit Jeetla? No. She gave me a piece of paper with names written on it and asked me to search for them. Do you know/remember the reason as to why Kuljit Jeetla asked you to conduct searches on Gurmit and Balbir? To make a complaint I believe. Was there a business need for the checks, and if so why? Yes, to take enforcement action because lots of them were illegal entrants and overstayers. What was the intention to look up these records? To get the required information and update the systems accordingly. It was authorised verbally by HMI Paul Smith, to proceed with the searches and to take action.”
[16]Mr Miah’s report was plainly unsatisfactory and demonstrated that he had not properly understood his brief. He concluded that there was a case to answer in respect of certain allegations prior to June 2013. He did not mention the 2015 look-ups at all, but accepting at face value the claimant’s assertion that HMI Smith had authorised her to update the records, concluded that there had been a legitimate business reason to do the checks in 2017. The tribunal drew the inference that as the 2015 checks had involve the same people, Mr Miah did not think that these gave rise to a case to answer either. It noted that Mr. Miah had not spoken to HMI Smith.[17]Mr. Wilkinson contacted Mr Smith in January 2022 asking a series of questions which are set out at paragraph 54 of the reasons. In short, Mr Smith replied that he did not recall authorising these checks or instructing the claimant to carry them out. He made clear in a covering email that he would not have authorised a member of staff to conduct searches on someone whom they or a colleague had sponsored.[18]Mr. Smith’s responses were sent to the claimant and her union representative on the 26th of January.[19]A disciplinary meeting took place on 4 February 2022 by Teams. The claimant was accompanied again by her union representative.[20]Following the disciplinary meeting, but before issuing his decision, Mr Wilkinson made further enquiries, this time of Mr. Edwards. That person was asked to clarify whether he had authorised any operational activity or research relating to those named in the checks. This was said to be a double check as to whether there could have been any authority given to the claimant for the searches made. Mr Edwards confirmed that no such activity had been authorised him neither had he commissioned anyone to undertake such research. Mr Wilkinson also went back to Mr Newbould, who had carried out the initial audit, seeking to check whether there had been any legitimate or business related reason that could have been missed or overlooked. Mr Newbould responded that there was no indication then or now of any enforcement action against any of the people listed nor any lawful business reason for a staff member in enforcement to be accessing those records.[21]Mr. Wilkinson did not mention the enquiries that took place following the disciplinary meeting to the claimant or her representative at the time.[22]On 9 February 2022 the respondent wrote to the claimant confirming that she was summarily dismissed for gross misconduct and advising her as to her right of appeal. As cited in the tribunal’s reasons the letter of dismissal was in the following terms: “You accessed CRS records on a number of occasions prior to the change in departmental policy which came into effect on 10th June 2013. I have considered the access of CRS prior to this period and it has not been included within the consideration as the departmental setup and process around its use were inconsistent. Although where relevant I have made reference. We discussed access to CRS in respect of the following dates 25/06/13 and 11/08/13. Three family members of your ex-husband were looked up in this period. You stated that the record had been looked up as a result of you wishing to make an allegation and you were trying to identify full details. You made a similar statement when accounting for checks that you had conducted on these same family members between 2006-2011. We then discussed the checks that were undertaken on 20/07/13 these were conducted on a relative of your ex-husband. You stated that this look up was done in support of an intelligence allegation you were wishing to make against the person. You had previously looked these family members up on a number of occasions between 20/10/08 and 15/11/2012. Where you stated that this was done to make an allegation against the family members. We then discussed the email which had been sent from your Home Office account in 2010 to a contact you had within the Pakistan Customs team. You advised me that it was an old school friend. You were contacting him via a Yahoo email address which is stated to have been the official Pakistani customs email address. You passed operational information to that person relating to identifiable individuals. This was not done in accordance with any policy or process and does not appear to have followed any of the National intelligence model guidelines. You stated this was done with the best intentions and in the spirit of information sharing due to shared objectives. You stated this was done with managerial consent although were unable to identify the managers who were aware or authorised it. I am concerned that unauthorised intelligence disclosure can have unintended consequences and is why National intelligence model and departmental processes must be followed. We discussed the access of CRS records pertaining to an existing staff member where records of 7 individuals of records were looked at on the 11th September 2015. These were all connected to or related to the staff member at Eaton House. You stated that you would never look up records on behalf of other staff members. You stated that there must have been a business reason for these look ups. At the time of the investigation there was no record of any legitimate business reason for these checks. I have since rechecked with PSU and they confirm there is no legitimate explanation for access to these records. I have also spoken with the Assistant Director of West London and he confirms no such investigations were authorised in respect of these individuals. I have considered whether there is a coincidence in your lookups, but I find it highly unlikely in view of the search parameters entered and the time frame in which these checks were conducted. We discussed the CRS checks which had been undertaken on 03/08/17 in respect of two individuals who were known to a staff member who you state had given you a list with names on it. You explained that you undertook the checks in order that the staff member could make a complaint. You explained you had discussed it with a manager, Paul Smith, and we confirmed an email that supports the fact you referenced the case to Paul. It doesn’t not however give authority to conduct the checks on those individuals. You did note CRS with the nature of the concern. I do however still consider this to be out of the scope of the terms of use of CRS. …. I have carefully considered all the facts and have read and reviewed the mitigation you put forward to me and also the additional information your provided during the hearing. I acknowledge your long service with the organisation, and I recognize the commendations and note of appreciation from colleagues that you have put forward. I am mindful of the circumstances you were in at the times of these checks and cognisant of the impact that this investigation has had on you and your health. I understand from your explanation that in every incident you believed you were acting in good faith. You confirmed to me that at no point in any of this were you under duress, financial incentive or pressure to conduct these checks and that no information from the CRS records was passed to a third party. In considering the appropriate sanctions I must also consider the precedents. However, in your case I must consider the number of unauthorised look ups, the fact that they are former family members of yours or relatives of a colleague and the fact that this continued over a period of time. In each case on its own I would consider as Gross misconduct. “[23]An appeal took place on 14 April 2022 chaired by Mr Shoker. It was not upheld.[24]I turn to the grounds of appeal, and to Grounds 4 and 5.[25]Ms Millin submits that the Tribunal erred in failing to take the 2015 ACAS Code of Practice of Disciplinary and Grievance Procedures (The ACAS code) into consideration and failed to deal with the submissions made by the claimant about the breaches. She argues that the code forms the basis on which an employers conduct should be judged (Lock v Cardiff Railway Co Limited (1998) IRLR 358) and had the tribunal taken note of the requirements of the code, it may have arrived at a different conclusion regarding the reasonableness of the employer’s decision.[26]So far is ground 5 is concerned, she argues that the failure to provide the claimant with the evidence of Mr Newbold and Mr Edwards before arriving at a decision rendered the procedure unfair. She criticises the tribunal’s finding that, had the evidence of Mr Newbold and Mr Edwards been provided to the claimant and her representative, it would have made no difference.[27]Mr Kirk points out that it is not an error of law for a tribunal not specifically to quote from the ACAS code. Whilst s 207 of the Trade Union and Labour Relations (Consolidation) Act 1992 provides that the tribunal shall take into account any provision of the AAS code which appears to it relevant to any question arising in the proceedings, this does not mandate citation by a tribunal of the relevant provisions. So far as this case is concerned, the relevant provisions of the Code are, para 6, which stipulates that in misconduct cases, where practical, different people should carry out the investigation and disciplinary hearings and para 9 which provides that it would normally be appropriate to provide copies of any evidence, which may include any witness statements, with the notification of a disciplinary meeting.[28]The language of each of these provisions is far from mandatory, and it does not follow, Mr. Kirk argues, that any breach renders a dismissal automatically unfair. Mr Kirk also seeks to support the tribunal’s conclusion that the failure to provide this additional evidence gave rise to no material unfairness, contending that the tribunal was entitled to focus on what the impact of the procedural shortcomings would have been to the overall results.[29]At paragraph 117 of the reasons, the tribunal noted that the action taken by Mr Wilkinson in approaching Mr. Smith directly, Mr Miah having failed to do so, was a breach of the respondent’s disciplinary procedure insofar as it conflated the roles of investigation manager and decision manager. The tribunal noted that, if the original investigation was deficient, the decision manager should have sent it back to the investigation manager rather than seek to rectify it himself. The tribunal concluded that, whilst this was a technical breach it was also a shortcut to save time which did not cause any real prejudice to the claimant. The outcome, it held, would have been likely to be the same.[30]The tribunal also considered Mr Wilkinson's failure to disclose to the claimant the discussions which he had with Mr Newbould and Mr. Edwards, following the disciplinary meeting finding it to have been a further shortcoming in the procedure. However, the tribunal held that what Mr. Edwards and Mr Newbould told Mr Wilkinson following the disciplinary hearing did not help the claimant and was essentially a “nil return “in relation to the question that he had sought clarification of, which could have been in the claimant's favour.[31]In my judgment, there was plainly substantive compliance in this case with the requirements of the ACAS Code, and the specific failings that the relevant paragraphs address were clearly identified by this tribunal and referred to specifically. The letter of dismissal spells out very clearly the detailed findings which were made. The additional enquiries carried out by Mr Wilkinson following the hearing were, in my judgment, attempts by him to see whether there might have been some authorisation of the claimant’s actions. Had those enquiries not been made it seems to me that the evidence was already squarely against the claimant’s case, and the outcome would have been the same. I can see no error of law arising from the way that the tribunal reached its conclusions on this issue. For these reasons, grounds 4 and 5 fail.[32]Ground 7 concerns the apparent inconsistency in the treatment of the complainant in dismissing her when, in the other case of a similar nature which Mr Wilkinson had presided over, the employee concerned had not been dismissed. The complaint is that the tribunal failed to make a proper comparison of the two cases and the circumstances of the other employee were not considered. Moreover, there was no mention in the tribunal’s conclusions as to reasonableness.[33]Mr Kirk points out that the evidence of Mr Wilkinson had been that he had checked with HR to ensure that his decision was consistent with policy and in line with other decisions being made in similar situations. He produced a note of evidence which confirmed that Mr Wilkinson gave evidence in cross-examination that he had given the other employee 24 month final written warning, the principal difference between the cases being that whereas in the claimants case there had been 20 look-ups, in the other case that had been only four. Mr Kirk says that, following this evidence no further questions of Mr Wilkinson were asked in cross-examination about the circumstances of the other employee’s case. In such a situation, it was not open to the tribunal to go beyond the evidence in the case.[34]Paragraph 140 of the reasons the tribunal noted that whilst an employer should consider a comparator if it is reasonable to do so, on the facts of this case in order to engage that obligation, the initial onus was on the claimant to adduce the necessary facts to enable the respondent to make the comparison.[35]At paragraph 143 of the reasons the tribunal commented that the claimant provided no specific information or evidence about any comparator, and no specific comparators were mentioned to either Mr. Wilkinson or Mr. Shor in cross-examination.[36]At paragraph 144 the tribunal noted that the comparators argument was a mere assertion and the respondent decision-maker were entitled to make their decisions in the absence of any material relating to the comparators having been put forward by the claimant.[37]In the circumstances, it is evidence that there was no error of law by the tribunal in relation to this issue, and ground 7 also fails.[38]Ground 11 is predicated upon it having been a specific plank of the claimant’s case that Mr Wilkinson was acting in bad faith, was prejudiced and biased. Beyond re-stating that bald assertion Miss Millen does not expand further on this allegation. I have looked through the further and better particulars that were provided by Mr Aziz of the ET 1 as originally lodged, and note that there are no such allegations made.[39]Mr Kirk says that it was never put to Mr Wilkinson in evidence that he was acting as the ground alleges. As there has been no evidential material put forward on the claimants behalf to suggest that this was a plank of her case, or even a small part of it, it reinforces my view that the reason that the tribunal has not made reference to this allegation is because it was not made and was not an issue before the tribunal. This was a detailed and careful decision with clear reasons. Ground 11 is therefore dismissed.[40]Grand 13 is the next one dealt with by Judge Stout, so I will take it in in that order. Ms Millen argues that in certain circumstances a delay in the conduct of an investigation might of itself render otherwise fair dismissal unfair, an example being where an employee might be prejudiced because of fading memory. She also points out that the tribunal did not consider whether the delays themselves may have affected the respondent view of the claimants conduct.[41]Mr. Kirk contends that the tribunal considered all of the relevant facts, including the length of the delays and the reasons for it and the extent to which any delay impacted negatively upon the claimant.[42]The tribunal made a number of findings concerning delay, from paragraphs 120 onwards. It noted, that following the discovery of the unauthorised searches, in 2020, the COVID-19 pandemic struck, resulting in a slowdown of many aspects of life in this country. The tribunal criticised the “leisurely pace” of the investigation but concluded the parts of the delay were caused by factors outside the respondent’s control. It commented at para 127 that the claimant’s mental health deteriorated quickly after she was suspended enjoying the first half of 2021, following which the respondent was not responsible for the delays. It found that any additional deterioration in the claimant’s health during the period of delay in late 2021 was likely to have been marginal.[43]There is nothing in the original ground 13 that suggests that the delay in carrying out the investigation and the disciplinary process had any bearing on the respondent's view of the seriousness of the allegation. The tribunal concluded, as it was entitled to, that the respondent had made clear as long ago as 2013 how seriously it viewed unauthorised look-ups on its system, and that Mr Wilkinson reached a conclusion which was within the range of reasonable responses open to him. No error of law on the part of the tribun al is apparent[44]The final ground referred to by Judge Stout is under grounds 10 and 12 – limited to whether the look-ups which the claimant conducted were in pursuit of a legitimate business need as they were broadly in furtherance of immigration enforcement. The question posed is whether there was separate offence, with which the claimant was not charged, of investigating family members.[45]Ms Millen’s skeleton argument simply recites this formulation. Mr Kirk describes it as arising from a misunderstanding: the policy is that nobody can access information without a legitimate business need. Embarking on an investigation into one’s own family members or spondees, and/or those of colleagues in support of private ends, as opposed to investigations properly assigned to an employee, can never be a legitimate business need. I note at paragraph 12 of the reasons the tribunal cited a Chief Immigration Officer called by the claimant as a witness as saying, under cross-examination that “if [his]job was to use CRS to look up offenders, he would not ask a member of the offender’s family to do the looking up, and he wouldn’t ask another officer to look up his own family or relatives for him”.[46]The thrust of the claimant’s case was that she had been authorised by someone else to do the look-ups in question. That evidence was rejected by the tribunal, as it was entitled to do. In those circumstances there can have been no legitimate business need.[47]Having considered the grounds of appeal as permitted to be advanced at this hearing, they are all dismissed.

Cited in 1 later judgment