Miss P Teelock v Secretary of State for Work and Pensions: 2305086/2023
EMPLOYMENT TRIBUNALS
Case No 2305086/2023
Between
Miss P TeelockClaimantSecretary of State for Work and PensionsRespondent
Before
Employment Judge AbbottMs N Mallick (instructed by Lambeth Solicitors) for claimantMr L Dilaimi (instructed by the Treasury Solicitor) for respondentDate 28 March 2025
JUDGMENT
[1]The complaint of unfair dismissal is not well-founded and is dismissed.[2]The complaints of race discrimination, bullying/harassment, breach of contract in respect of notice pay and in respect of unpaid holiday pay are dismissed upon withdrawal by the Claimant.
REASONS
[1]This is my judgment on the claim brought by Miss Pamila Teelock following a remote hearing by video on 26, 27 and 28 March 2025. The decision was announced on 28 March 2025 and oral reasons given; the Claimant’s representative requested written reasons under Rule 60(4)(a) of the Employment Tribunal Procedure Rules 2024.[2]This claim was presented on 21 September 2023, early conciliation having taken place between 5 July 2023 and 16 August 2023. The claim originally included complaints of race discrimination, bullying/harassment, breach of contract in respect of notice pay, and in respect of unpaid holiday pay. All of those complaints were withdrawn at a Preliminary Hearing on 24 June 2024, and are now formally dismissed in this judgment. The only live claim to be determined by me was a complaint of unfair dismissal under sections 94 & 98 of the Employment Rights Act 1996 (“ERA”).[3]A List of Issues was settled by EJ Robinson at the Preliminary Hearing on 24 June 2024, and the parties agreed at the start of the hearing that it fully reflected the pleaded issues that are live before the Tribunal. In terms of liability issues, it is as follows:[1]Did the Respondent act reasonably in the circumstances, including its size and administrative resources, in treating the alleged misconduct as a sufficient reason for the Claimant’s dismissal? (ERA 1996, s.98(4))[2]In particular, did the Respondent form:a. a genuine belief that the Claimant was guilty of the misconduct alleged;b. on reasonable grounds;c. after such investigation as was reasonable?[3]Was dismissal a sanction within the range of reasonable responses open to the Respondent? (ERA 1996, s.98(4))[4]Did the Respondent follow a fair procedure? (ERA 1996, s 98(4)). The Claimant relies on the following as amounting to procedural unfairness:a. The Respondent failed to fully investigate the alleged access to its computer system within its policy guidance of 30 days.b. The Respondent failed to give the Claimant written notice and 5 days’ notice of its planned meetings of 20 April 2023 and 26 April 2023 as contained in its policy.c. The Respondent failed to notify the Claimant in writing during its investigation of matters concerning the investigation as stated in its policy (the arranging a meeting on 20 April 2023 and 26 April 2023).d. The Respondent failed to provide the Claimant with advance notice and time to prepare for its planned meeting on 26 April 2023 as suggested by the ACAS guidance on disciplinary and grievance procedures.e. The Respondent failed to act consistently, as suggested by the ACAS guidance on disciplinary and grievance procedures, in its investigation by involving a line manager (Joseph Akinwande) to assist in the arrangement of the meeting on 26 April 2023 rather than involving the investigating officer (Suresh Sivadasan). 4. The hearing was conducted by video on the CVP platform. Oral evidence was heard from four witnesses for the Respondent (Mrs Arti Patel, Mr Farhan Bemath, Mr Suresh Sivadasan and Mrs Patience Ukueku) and from the Claimant herself, each of whom provided a witness statement. Counsel for the parties each provided written submissions (Mr Dilaimi for the Respondent in opening, Ms Mallick for the Claimant in closing) and oral closing submissions. The parties had helpfully agreed a reading list and cast list, and each provided a chronology. The bundle of documents for the hearing ran to 535 pages. I thank the parties for the efficient conduct of the hearing.
The facts
[5]The role of the Tribunal is to consider all of the witness evidence, and the documentary materials referred to, and form a view as to what is most likely to be the true position on the balance of probabilities. It is important to say that, simply because I may disbelieve the evidence of a witness on a particular point, does not mean that I consider they are deliberately seeking to mislead – nor does it mean I must automatically disbelieve them on other points. Ultimately I have to weigh up all the evidence on all different points and assess it on its merits.[6]I have only made findings of fact necessary for the disposal of the live issues in this case. I have not referred to every document I have read and/or was taken to during the hearing, but have considered all such documents. I have not considered documents that were not referred to in the written or oral evidence or in submissions.[7]The relevant facts are, I find, as follows. References to [x] are to pages in the hearing bundle.[8]The Claimant began employment with the DWP on 28 August 2001. Prior to 2020 she had an unblemished employment record. At time of the events at issue in this case, she was an administrative officer in the Counter Fraud, Compliance and Debt team, based at Job Centre Plus, Tooting Branch.[9]The Claimant’s employment was subject to several DWP policies. Chief amongst these, for present purposes, were the policy entitled “How to deal with security incidents and breaches of information security” [325-349], the Acceptable Use Policy [397-405] and the Discipline Procedure [446-471].[10]On 5 November 2020, the Respondent’s Internal Abuse Team issued a report [68-82] to the Claimant’s then Regional Leader identifying that the Claimant “appears to have undertaken inappropriate accessing or tracing activity that could result in disciplinary action”. The report outlined, in its Appendix 1 [73-75], that a scan of activity on CIS (the DWP’s Customer Information System) conducted on 1 October 2020 had identified that the Claimant had inputted her own postcode into Searchlight (the application through which DWP staff access CIS) at 11:17:21 on 25 September 2020. It is apparent from the report that the IAT then carried out further investigations and identified that the Claimant had input into Searchlight the National Insurance number (“NINO”) for three individuals recorded in CIS as living at the same address as the Claimant and accessed their records on a total of 21 occasions on 25 September 2020, as well as a on a further 4 occasions on earlier dates: 19 December 2019 and 11 March 2020. Although the Claimant suggested in her oral evidence that the report showed how long she was on the pages in question, I do not accept that the report in fact does so on its face (and the subsequent investigation and disciplinary treated the report as describing 26 individual events of access, consistent with the times provided being moments of access, not periods).[11]The IAT report attached audit trails detailing the event date, time, operator ID etc [86-114]. It also attached what are described as CIS live prints, those showing the customer details that would be seen on screen when a customer NINO is entered into Searchlight [77-80].[12]The IAT report was passed to a Team Leader for disciplinary investigation. It is not necessary to go into the details of the process. In short, the Claimant accepted the truth of the allegations against her but offered mitigation – essentially that the individuals registered as living at her address did not in fact live there and were using the address presumably for fraudulent purposes, that the Police had refused to get involved, that her parents had had to be rehoused to rented accommodation for their safety, and the Searchlight accesses were done in desperation and under severe stress. She expressed deep regret for her actions. Taking account of this mitigation, that there was no known use of the information viewed, and the Claimant’s previous good record, the decision maker decided that although this was gross misconduct the appropriate sanction was a final written warning. The outcome letter said this in respect of the duration of the warning: “This warning will remain on your SOP record and I will hold a hard copy for 24 months, from this letter’s date; that is until 29th April 2023. This penalty reflects the seriousness of your actions and is just short of dismissal. Should you commit another act of misconduct within this time, you are likely to be dismissed, or if gross misconduct, unless exceptional circumstances apply, you will be dismissed without notice and without pay in lieu of notice. It is therefore very important that you improve your standard of conduct and behaviour to that expected of all employees and act professionally at all times.”[13]The outcome was not appealed. This warning was issued in good faith, was based on at least prima facie grounds and it was not manifestly inappropriate for it to have been issued; indeed, the Claimant did not seek to suggest otherwise.[14]On 30 March 2023, the Respondent’s Internal Abuse Team issued a report [225-239] to the Claimant’s then Regional Leader, again identifying that the Claimant “appears to have undertaken inappropriate accessing or tracing activity that could result in disciplinary action”. The report outlined, in its Appendix 1 [230-231], that a scan of activity on CIS had identified that the Claimant had inputted the NINO of her brother into Searchlight at 10:48:32 on 23 December 2022. Further investigations had not identified any other inappropriate accesses (i.e., into the Claimant’s own CIS record or the records for any other occupants of her address). The report therefore identified a single inappropriate access.[15]The report attached an audit trail detailing the event date, time, operator ID etc [235-236]. Confusingly, the audit trail shows two records with essentially the same details for the same time (even though the report itself described a single event). It also attached CIS live prints showing the details for the Claimant’s brother that would be seen on screen when his NINO is entered into Searchlight [239], and also for the Claimant herself demonstrating they had previously shared addresses [237].[16]In terms of the information provided in the report, and the attachments to the report, the 30 March 2023 report was of the same level of detail as the 5 November 2020 report. The only real distinction between the two was that the earlier report dealt with 26 events, whereas the later report addressed only one.[17]The IAT report was passed to a Team Leader for disciplinary investigation. In this instance the nominated Investigation Manager was the Claimant’s line manager, Arti Patel. On 31 March 2023, Mrs Patel issued the Claimant with an invite to an investigation meeting [240-241]. The invite letter set out the allegation as follows: “It has been alleged that you went into CIS/Searchlight on the 23.12.2022 on your details and those of your brother, this has come up on an internal scan. The Internal Abuse Monitoring Team have evidence to support this which, if proven, could be considered gross misconduct”[18]Pausing there, there is an error in this allegation, as the IAT report did not evidence the Claimant having entered her own details, only her brother’s.[19]The letter went on to describe the purpose of the meeting as follows: “The purpose of this Investigation meeting is to establish the facts of the matter. If it is found that there is a case to answer you will be invited to attend a formal Discipline meeting where you will have an opportunity to state your case.”[20]The Claimant was offered the right to be represented at the meeting, and she was represented at the meeting which took place on 6 April 2023 by her Union rep, Angelo Ferraro. The minutes, agreed to be accurate, are at [244- 245]. The meeting lasted 20 minutes. It is evident from the minutes that the Claimant and her representative were provided with the attachments to the report, as Mr Ferraro commented on the oddity of two separate records apparently showing as being simultaneously accessed. He also raised an issue around the delay between the alleged access and the investigation being commenced. The minutes record Mr Ferraro’s statement that “as far as he and [the Claimant] are concerned it never happened and the report proves nothing.”[21]Mrs Patel went on to ask the Claimant to describe her day on 23 December 2022, which she did. Mrs Patel enquired as to whether the Claimant left her smartcard (which is used to access the DWP’s systems) unattended, and the Claimant denied this. Mrs Patel asked the Claimant outright if she had accessed her brother’s records; the Claimant denied having done so, and also explained that she did not know her brother’s NINO and would have no reason to access his records. Mrs Patel asked the Claimant about her information security training, and the Claimant confirmed she had completed and understood that. Mrs Patel also asked the Claimant to confirm how long she had worked for the DWP, and the Claimant confirmed it had been over 21 years.[22]Mr Ferraro raised concerns that there was no evidence that the Claimant had accessed “the build”, which I understood from Mrs Patel’s evidence meant that there was no evidence the Claimant went further than the initial CIS details screen brought up when a NINO is inputted.[23]The minutes of the meeting conclude with this sentence: “Arti further explained that once the minutes have been agreed by all, it will be forwarded to a decision maker.” What happened next is consistent with that – once the Claimant had confirmed the accuracy of the minutes, Mrs Patel simply sent them on to her Senior Executive Officer, Suresh Sivadasan [242]. Mrs Patel did not produce an Investigation Report as contemplated by the guidance on “How to investigate discipline and grievances cases” [430]. She conducted a (very limited) fact-gathering exercise by interviewing the Claimant and passed on the minutes of that meeting to Mr Sivadasan as the Decision Maker to decide what to do next. That was akin to the “fast-track” process under the Discipline Procedure, but paragraph 7.6 of that Procedure provides that process should never be used for misconduct cases which could result in dismissal [454].[24]I find that Mrs Patel did not properly understand her role as Investigation Manager. She fairly acknowledged in her witness statement that she had not acted as an Investigation Manager before. The contemporaneous evidence shows that she considered her role to be limited to fact-gathering. She did not at the time (contrary to her oral evidence) consider it was her role to decide whether or not there was a “case to answer” – as the contemporaneous documents show, she simply gathered evidence and sent it on to Mr Sivadasan without producing any report on her findings or even opining on what the Claimant had told her. In fairness to Mrs Patel, paragraph 7.19 of the Discipline Procedure puts responsibility for deciding on “case to answer” with the decision maker, based on consideration of the conclusions of the investigation, not with the investigator [457].[25]In any event, it is plain that the decision to proceed to a disciplinary (i.e., that there was a case to answer) was taken by Mr Sivadasan, not by Mrs Patel. He did so, I find, based on the information provided to him, i.e. the IAT report (and its attachments), the minutes of Mrs Patel’s meeting with the Claimant and certain documents relating to the Claimant’s previous written warning (specifically: the invite letter, disciplinary meeting minutes and outcome letter).[26]Having made that decision, on 19 April 2023 Mr Sivadasan sought to contact the Claimant by telephone. I accept his evidence that this was wellintentioned – he wanted to introduce himself as the decision maker and seek to establish the Claimant’s availability for a meeting before sending a formal written invite. I also accept his evidence that it was the Claimant, rather than him, who instigated a discussion about the substance of the allegations, and I reject the Claimant’s evidence that Mr Sivadasan sought to demand a meeting the following day. My reasons for preferring Mr Sivadasan’s evidence on this incident over that of the Claimant largely align with the reasons given by Mr Thompson when he investigated the Claimant’s grievance in respect of this conversation, specifically that the witnesses identified by the Claimant (and interviewed by Mr Thompson) did not corroborate the Claimant’s account [300-302]. Mr Sivadasan’s account of the Claimant’s panicked reaction is also consistent with how she reacted at her initial investigation meeting back in December 2020 when the seriousness of the allegations (and the potential for dismissal) was brought home to her [128].[27]After an exchange of emails later that day [503], Mr Sivadasan sent the Claimant a Teams meeting invite for 11am on 26 April 2023 [504] (that being the Claimant’s first day back after a period of pre-booked annual leave commencing on 20 April 2023). I accept the Claimant’s evidence that she didn’t see that invite until her return from leave. When she did see it, she did not accept it – her oral evidence (which I accept) was that she was advised by Mr Ferraro not to speak to Mr Sivadasan, though she accepted that neither she nor Mr Ferraro communicated this to Mr Sivadasan.[28]In those circumstances, when Mr Sivadasan opened the Teams meeting at 11am on 26 April 2023 and the Claimant did not join, despite showing online, he tried to call her on several occasions. The Claimant did not answer. Mr Sivadasan then asked a Team Leader on site in Tooting, Mr Akinwande, to ask the Claimant to call him back. I accept Mr Sivadasan’s evidence that he did not disclose to Mr Akinwande why he wanted the Claimant to call him. Although Mr Akinwande communicated the message to the Claimant, she did not call Mr Sivadasan back.[29]I find that there was no malintent in Mr Sivadasan seeking to contact the Claimant to arrange a time for the disciplinary meeting. I also accept his evidence that, had the Claimant or her representative asked him simply to issue a formal disciplinary invite letter with a proposed meeting date rather than attempt to agree a date on a call, he would have done so.[30]Having failed to speak to the Claimant, Mr Sivadasan sent a disciplinary meeting invite letter on 27 April 2023 [505-509], scheduling the meeting for 9 May 2023. However, that meeting did not take place as, at some point after the letter was sent, Mr Ferraro called Mr Sivadasan to say that the Claimant had been distressed by Mr Sivadasan’s actions on 19 and 26 April 2023 and requested an alternative decision maker. Mr Sivadasan agreed to step aside, and passed the responsibility to another Senior Leader, Farhan Bemath. I find that, subjectively, Mr Sivadasan did not consider that him nominating a replacement decision maker posed any conflict.[31]Mr Bemath was passed the paperwork on 9 May 2023, comprising the same documents Mr Sivadasan had as listed previously [246]. He did not know, and had had no involvement with, the Claimant prior to this. He had acted as a decision maker only once before in recent times, though had historic experience from more than a decade prior.[32]Having considered the paperwork, Mr Bemath contacted the IAT for some assistance in understanding the IAT Report. Specifically, this was to clarify the apparent two records in the audit trail (as to which it was clarified there was only one access – the two records indicated that the user had scrolled to the bottom of the screen), and the robustness of the audit system (as to which he was told the access had definitely occurred).[33]Mr Bemath also contacted HR for some advice on the relevance of the previous final warning, which was provided on 22 May 2023 [248-249]. That advice was to the effect that, because the misconduct being examined took place within the live warning period then it would link with the previous misconduct. The advice also covered mitigation, and stated that mitigation was up to the member of staff to offer.[34]Mr Bemath sent a disciplinary meeting invite letter on 31 May 2023 [250- 252], scheduling the meeting for 6 June 2023. The allegation specified in the letter was “that you inputted the National Insurance number of your SOP emergency contact into CIS Searchlight on the 23rd Dec 2022 at 10:48:32. Browsing and unauthorised access to records.”[35]The meeting went ahead on 6 June 2023. The minutes are at [253-254] and I accept they are an accurate summary. The Claimant was again accompanied by Mr Ferraro. In his opening, Mr Ferraro stated that it had ever been explained what happened on CIS, that no report showing e.g., how long the access was had been provided, and he submitted that a decision could not be made without these facts. Mr Bemath communicated what he had been told by the IAT, i.e., that there was one access and no duration of time recorded. Mr Bemath asked the Claimant if she had accessed her brother’s account, and she denied that. She also confirmed no one else had access to her computer, and her awareness of the information security policy and standards.[36]Mr Ferraro maintained his stance that there was a lack of clarity; Mr Bemath communicated that he felt it was clear from the IAT report (supported by his conversation with IAT) that an access had happened.[37]Following the meeting, Mr Bemath sought further advice from HR, which was provided on 7 June 2023 [255-256]. Mr Bemath sought guidance on sharing the full IAT report (as opposed to just the attachments) with the Claimant, and was advised that this could be shown in a meeting but that a full copy could not be provided. He was also advised that, if the incident was proven, because it happened during the period of the live final written warning, it would be classed as gross misconduct. Mitigation should be considered in making a final decision on penalty, but that dismissal would be in line with policy intent where mitigation was not accepted.[38]Mr Bemath decided to hold a further meeting at which he could show the audit report. An invite letter was sent on 7 June 2023 [257-259] for a meeting to take place on 15 June 2023.[39]That meeting went ahead on 15 June 2023, attended by the Claimant and Mr Ferraro. The minutes are at [260-261] and I accept they are an accurate summary. I accept Mr Bemath’s evidence that the report was shared on screen; it is implausible that Mr Bemath showed a hard copy up to the camera as was claimed by Mr Ferraro in the appeal (but is not alleged in the Claimant’s witness statement for these proceedings). The Claimant maintained that she had not accessed her brother’s account, and that she had no reason to do so. She went on to say this: “I work with NINO’s daily as part of my job, every day. I have people querying NINO’s -some have been issued NINOs twice. Some keep applying for them. I deliberately did not access my brother’s account.”[40]Following the meeting Mr Bemath made his decision. He concluded that the Claimant should be dismissed. I accept that his reasoning was as is set out in paragraph 21 of his witness statement: “a. The audit trail clearly demonstrated that an access had been made from Ms Teelock’s account to that of her brothers;b. No other person could have made the access from Ms Teelock’s account as she confirmed that no one else had access to her smartcard or computer. Therefore Ms Teelock made the access;c. During the second Disciplinary meeting, Ms Teelock implied that if an access had been made from her account to her brother’s, that it was a mistake. My view is that it is very unlikely that Ms Teelock accessed her brother’s account mistakenly i.e. by mistyping a customer’s NI number. In any event, if such a mistake had been made, Ms Teelock would be aware of it and should have reported the error to her Line Manager. How to: Deal with security incidents and breaches of information security provides that “Not reporting a breach, or suspected breach, is in itself a disciplinary matter” [page 328].d. Following, Ms Teelock’s denial of the access is not credible.e. Ms Teelock did not provide a reasonable explanation for the access or any mitigation at all.f. Ms Teelock was aware that making an unauthorised access constituted serious or gross misconduct; she had completed the annual mandatory DWP Think Secure Training which covers information security and had previously been disciplined for the exact same type of misconduct.g. I would have awarded Ms Teelock with a Final Written Warning in line with 1.3 of the Information Security Matrix had the Warning not been in play. The Warning clearly states “Should you commit another act of misconduct within this time, you are likely to be dismissed” [page 220]. The Warning upgraded the level of misconduct from serious to gross misconduct and is covered by 1.2 of the Information Security Matrix (multiple accesses). Had the earlier misconduct been for another matter that was not an unauthorised access, dependant on the facts I may have differently graded the misconduct and penalty but I considered the fact that it was the same type of misconduct relevant. Due to the former disciplinary, Ms Teelock was more aware than the average employee of the policy around making unauthorised accesses, how serious an offence it is and that it could result in dismissal.h. CSHR had confirmed that dismissal would be in line with policy intent in the absence of mitigation [page 256].”[41]The dismissal letter was dated 27 June 2023 (having effect from 28 June 2023) [262-263], and Mr Bemath passed it to an Executive Officer, Ruth Morrison, to hand to the Claimant with the meeting minutes [495]. I accept the Claimant’s oral evidence that Ms Morrison informed her of her dismissal verbally on 27 June 2023 and received the documentation around a week later. In material part, the dismissal letter stated: “The investigation has concluded that you accessed the CIS Searchlight system on the 23rd December 2022 without legitimate business reason or reasonable justification for accessing the records. After considering all the relevant factors including sight of the security access printout and you have provided no reason or any mitigation for the unauthorised access. On the 23rd December 2022 you were under a live final written warning following a further failure to maintain acceptable standards of conduct. You were also informed that if your conduct fell below these standards again you were likely to be dismissed. After considering all the relevant factors, it has been decided that your employment with DWP has been terminated. This will take effect immediately, without notice and without pay instead of notice. Therefore, your last day of service is Wednesday 28th June 2023.”[42]The Claimant commenced ACAS Early Conciliation on 5 July 2023 [7].[43]On 6 July 2023 the Claimant filed an appeal against her dismissal [264- 266]. The appeal was allocated to a Senior Operational Leader, Patience Ukueku. An invitation was sent on 11 July 2023 for an appeal meeting to take place on 21 July 2023 [267-268]. That meeting took place, with the Claimant accompanied by Mr Ferraro. The minutes are at [269-274] and I accept they are an accurate summary.[44]The grounds of appeal advanced were a lack of evidence of the unauthorised access (and the Claimant not being provided with further evidence when requested), and procedural failings (specifically, delays in holding the meeting and incorrect information regarding the number of accesses in the investigation letter). The Claimant presented no new evidence at the appeal stage. She maintained her denial of having entered her brother’s NINO. Insofar as mitigation was offered, Mr Ferraro stated that a mistake could have been made in entering a NINO. Mr Ferraro was also critical of the fact that the meetings with Mr Bemath were conducted on Teams rather than in person.[45]When asked at the end of the meeting to add anything she wished to add, the Claimant said this: “I’ve said everything. I haven’t done it. It’s not like I’ve done it knowingly. I don’t know his NI. I was only made aware when we had the investigation meeting. I know that’s something that you shouldn’t do. I’ve been in the department long enough to know people do do those kind of things for a reason. For fraud purposes, financial. But I didn’t.”[46]Mrs Ukueku issued her appeal outcome letter on 28 July 2023 [275-276]. She dismissed the appeal. She acknowledged that the investigation meeting invite letter erroneously referred to two accesses not one, but that this was clarified and confirmed as one access in the disciplinary and appeal meetings. Otherwise, she found the Claimant had offered no new information, evidence or mitigation not already mentioned in the disciplinary meeting and, in particular, no credible explanation for the unauthorised access. She was satisfied that procedures had been followed correctly, and that the decision maker had considered all relevant factors.[47]The ACAS Early Conciliation Certificate was issued on 16 August 2023 [7]. This claim was presented on 21 September 2023 [8] – that being within 3 months of the effective date of termination. The relevant law Unfair dismissal – misconduct cases
The relevant law
[48]The legal principles in relation to dismissals where misconduct is relied upon as the reason were essentially undisputed.[49]Section 94(1) ERA provides that an employee has the right not to be unfairly dismissed by their employer. It is not in dispute that the Claimant was a qualifying employee and was dismissed by the Respondent.[50]Section 98 ERA deals with the fairness of dismissals. There are two stages within this section.[51]First, the employer must show that it had a potentially fair reason for the dismissal, i.e. one of the reasons listed in section 98(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” (section 98(1)(b)). Conduct is one of the potentially fair reasons.[52]Second, if the employer shows that it had a potentially fair reason for the dismissal, the Tribunal must consider whether the employer acted fair or unfairly in dismissing for that reason. Section 98(4) provides that the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) shall depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case. The burden of proof at this stage is neutral.[53]In cases relating to conduct (as this case is), the Tribunal should apply the test set out in British Home Stores Ltd v Burchell [1978] IRLR 379. In summary, the employer must demonstrate that:a. it genuinely believed that the employee was guilty of misconduct;b. it had reasonable grounds on which to base that belief; andc. it had arrived at that belief having carried out an investigation into the matter that was reasonable in the circumstances of the case.[54]It is not for the Tribunal to substitute its own view of what it would have done in the position of the employer, but to determine whether what occurred fell within the range of reasonable responses of a reasonable employer, both in relation to the substantive decision and the procedure followed (J Sainsbury plc v Hitt [2003] IRLR 23; Iceland Frozen Foods Ltd v Jones [1983] ICR 17).[55]An investigation must be even-handed to be reasonable, and particularly rigorous when the charges are particularly serious (A v B [2003] IRLR 405). The employer must consider any defences advanced by the employee, but whether and to what extent it is necessary to carry out specific inquiry into them in order to meet the Burchell test will depend on the circumstances as a whole – the investigation should be looked at as a whole when assessing the question of reasonableness.[56]The approach to be taken to procedural fairness is a wide one, viewing it if appropriate as part of the overall picture, not as a separate aspect of fairness. Any procedural defects in the initial disciplinary hearing may be remedied on appeal provided that in all the circumstances the later stages of a procedure are sufficient to cure any earlier unfairness. Where an employee is dismissed for serious misconduct, it is open to a Tribunal to decide that, notwithstanding some procedural imperfections, the employer acted reasonably in treating the reason as sufficient to dismiss the employee (Taylor v OCS Group Ltd [2006] IRLR 613. CA). Relevance of prior written warnings[57]The relevance of prior written warnings has been the subject of some debate in this case.[58]The Respondent relies upon the decision of the Court of Appeal in Davies v Sandwell MBC [2013] IRLR 374, CA to the effect that it is not open to the Tribunal to reopen the final warning except in exceptional circumstances. It further relies on the decision of the EAT (Langstaff P presiding) in Wincanton Group plc v Stone [2013] ICR D6 to the effect that a live final written warning always implies, subject to any contractual terms to the contrary, that subsequent misconduct of whatever nature will usually be met with dismissal, and only exceptionally will dismissal not occur. Having considered those decisions, I accept the validity of those propositions.[59]The debate in this case is about what is meant by a ‘live’ warning. In this case it is common ground that, whilst the warning was live at the time of the alleged misconduct, it had expired by the time the sanction of dismissal was imposed. The Claimant relied on the decision of the Inner House of the Court of Session in Diosynth Ltd v Thomson [2006] CSIH 5, for the proposition that it is “a contravention of the principle of fairness for an employer to put a time limit on a warning and then take it into account as a determining factor in a dismissal of an employee for a misdemeanour after the expiry date. An employee had a reasonable expectation that the employer meant what he said.” Importantly, in Diosynth, the misdemeanour occurred after expiry of the warning, so it is factually distinct from this case.[60]I was also referred to the decision of the Court of Appeal in Airbus UK Ltd v Webb [2008] EWCA Civ 49, which distinguished Diosynth on the facts, and is to the effect that the fact of a prior expired warning is still an objective circumstance that may be considered in the analysis of overall reasonableness.[61]No appellate authority dealing with analogous factual circumstances to this case was identified, though I was pointed to a decision of the ET in Ryves v Thorntons plc (Case No.2600852/15) which considered the approach that should be taken to a warning that had not expired at the time the misconduct took place but had by the time disciplinary action was taken. In that case the claimant was issued with a final written warning in July 2013 for an act of misconduct. It was reissued for a period of 12 months on 5 November 2013 following a further incident of misconduct. Two months later, the claimant was found to have committed a further act of misconduct and was dismissed. In the tribunal’s view, the employer did not act unreasonably by taking the final written warning into account when imposing a more severe penalty (i.e. of dismissal with notice) than it would otherwise have done. This was so notwithstanding that the final written warning had become spent according to the terms of the disciplinary policy by the time R was in fact dismissed.[62]I will come back to the relevance of these decisions in my discussion below. Failure to take account of mitigating circumstances[63]The Claimant also relied on several decisions in support of the proposition that a failure to consider mitigating factors contravenes the principles of fairness – even in a case where gross misconduct has been found. Particular reliance was placed on Brito-Babapulle v Ealing Hospital NHS Trust [2013] IRLR 854, EAT, where the EAT overturned an employment tribunal’s decision because it was based upon the false premise that the existence of gross misconduct was determinative of whether a dismissal is unfair. The EAT noted that the tribunal’s approach gave no scope for consideration of whether mitigating factors rendered the dismissal unfair, notwithstanding the gross misconduct. Such factors might include the employee’s long service, the consequences of dismissal and any previous unblemished record.[64]Set against that, in East of England Ambulance Service NHS Trust v Sanders EAT 0319/15, the EAT emphasised that Brito-Babapulle is not authority for the proposition that tribunals must look at mitigating factors not identified by the respondent. It was simply saying that a tribunal must not jump from a finding that dismissal was for gross misconduct to a finding that the dismissal is therefore fair. The EAT observed that dismissal for gross misconduct will usually be fair (whatever the circumstances) but that, in a ‘small number of cases’, the mitigating factors could be such that no reasonable employer would have dismissed. Application of the law to the facts[65]First, the employer must show that it had a potentially fair reason for the dismissal. On the basis of my factual findings, I find that the reason for dismissal was the conduct of the Claimant. This is a potentially fair reason under section 98(2) ERA.[66]I must then go on to examine the fairness or otherwise of the dismissal under section 98(4) ERA. I will deal first with the Burchell questions (point 2 of the List of Issues).[67]I have accepted Mr Bemath’s evidence as to what was in his mind when making his decision. I find that he genuinely did believe that the Claimant was guilty of misconduct.[68]Did he have reasonable grounds for that belief? In my judgement, he did. Before him was the evidence in the IAT report that someone had accessed the Claimant’s brother’s record on Searchlight by entering his NINO. That access was made under the Claimant’s account. There was no objective reason to doubt the veracity of that evidence. The Claimant flatly denied it was her that made the access, but also denied that anyone else could have used her account. In my judgement, the audit report and audit trails provided a reasonable basis for Mr Bemath to conclude, on the balance of probabilities, that it must have been the Claimant that made the access. No alternative explanation was provided that was more likely to be true.[69]Had the Respondent carried out as much investigation into the matter as was reasonable in the circumstances? It was a consistent theme throughout the disciplinary process that the Claimant and Mr Ferraro wanted further investigation to be done. The difficulty for the Claimant here, as I see it, is the nature of the allegation for which she was dismissed: an allegation of accessing a Searchlight record without authority or legitimate business reason. The fact of access was evidenced by the 30 March 2023 IAT report. The evidence in that report was of the same level of detail as in the 5 November 2020 report.[70]The further evidence that was sought by the Claimant and Mr Ferraro was focused more on evidence as to what was done next (i.e., what was browsed, were their keystroke logs to show this, etc). But the absence of such evidence did not detract from the evidence supporting the core allegation of access.[71]It is also important that the Claimant outright denied having inputted her brother’s NINO. In those circumstances, evidence of what the user did after inputting the NINO would take matters little further. It may have been different if the Claimant was advancing a positive case that she may have inputted her brother’s NINO inadvertently, in which case evidence that e.g., she immediately closed the page might have been of relevance – but that was not the Claimant’s case.[72]The Claimant was given the chance to account for the access evidenced in the IAT report at the investigation meeting with Mrs Patel and at two meetings with Mr Bemath prior to her dismissal (and in her appeal also).[73]Stepping back and looking at the overall picture, I find that the Respondent had carried out as much investigation into the matter as was reasonable in the circumstances.[74]That is not the end of the matter, because I must also deal with the question of whether dismissal was a sanction within the range of reasonable responses, and whether any flaws in the procedure rendered the dismissal unfair.[75]I deal with fairness of the sanction first (point 3 of the List of Issues). As I have already said, this case is not on all fours, factually, with Diosynth. In terms of a wider proposition around fairness / reasonable expectation that the Claimant derives from Diosynth, it is important to look at what the employer did actually say here. I quoted from the warning letter at paragraph 12 above.[76]I do not consider that a reasonable expectation could be derived by the Claimant from the terms of the warning letter to the effect that for misconduct prior to the expiry of the warning, but which was sanctioned only after expiry, the warning was to be disregarded. That is not consistent with the wording “another act of misconduct within this time”. It is also not consistent with e.g., the Discipline Procedure, which refers to dismissal being potentially appropriate “when another incident of misconduct occurs after a final written warning has been given and is still live” [459].[77]In my judgement, therefore, it was not unreasonable for the Respondent to take account of the final written warning when considering the sanction, in view of the terms of the warning, the Discipline Procedure, and the fact that the warning was ‘live’ at the time of the misconduct. To do so was consistent with the case law cited above, including Airbus v Webb.[78]That being so, this is a situation where, in my judgement, the proposition set out above from Wincanton v Stone does apply: subsequent misconduct of whatever nature will usually be met with dismissal, and only exceptionally will dismissal not occur. The misconduct found in this instance was not, in isolation, conduct that would justify dismissal, as Mr Bemath accepted. However, in my judgement, it was within the range of reasonable responses for Mr Bemath to conclude that dismissal was justified in all the circumstances. As he reasoned: the final written warning was ‘live’ at the time of the misconduct, it related to conduct of a similar nature to the present instance, and the Claimant was aware of the importance of compliance with information security.[79]There were no exceptional circumstances, viewed objectively, that would render it unreasonable to dismiss. The Claimant sought to rely particularly on her long service and (prior to 2019) unblemished record, but these are not objectively exceptional (nor do they take this case into the ‘small number of cases’ described in Sanders where the mitigating factors could be such that no reasonable employer would have dismissed). I consider it was within the range of reasonable responses to set those points aside in these circumstances: i.e. where there was a finding subsequent misconduct of a serious nature within the period of a ‘live’ final written warning for gross misconduct of a similar nature.[80]That leaves the procedural points. Several were raised by the Claimant in closing arguments and I shall address them in turn.[81]I have made findings already regarding the supposed need for further evidence or, as it was put in submissions, a “full audit report”. I reject the submission that it was reasonably necessary for such further evidence to be gathered. As already noted, the allegation was about access per se but the further evidence sought was about what happened next. I do not consider there to have been any unfairness in this regard.[82]I have made factual findings about Mrs Patel’s investigation. There were certainly flaws in that phase. The investigation meeting invite letter identified two accesses rather than one, and this was not clarified at the investigation meeting itself. It was, however, clarified at the disciplinary meeting. So this was of no consequence in the overall procedure.[83]Mrs Patel failed to produce her own investigation report, and essentially adopted a “fast-track” approach to investigation that was inconsistent with the Disciplinary Policy for cases that might lead to dismissal. I accept this was procedurally imperfect. However, in the particular circumstances of this case, I do not consider it detracts from the overall fairness of the process. The IAT report had been produced evidencing an unauthorised access. The only further reasonable investigation objectively required was to get the Claimant’s version of events. Mrs Patel did that, and then passed her minutes along to a decision maker to decide on next steps. That she did not package it appropriately is of no real consequence to the overall procedure.[84]On alleged delay (point 4a of the List of Issues), I was never taken to the policy guidance referred to in the List of Issues. In any event, it is clear in the documents that the IAT report was produced on 30 March 2023 and the investigation commenced almost immediately upon the alleged unauthorised access being flagged (the investigation invite letter was sent the next day). There was no delay amounting to a procedural unfairness – there is no doubt that the Claimant was properly able to give her account of events.[85]Next are the actions of Mr Sivadasan on 19 and 26 April 2023 (points 4b-e of the List of Issues). I have found that, although Mr Sivadasan had no malintent and was simply trying to agree an appropriate date for the disciplinary hearing, the Claimant was upset by his approach. However, in terms of impact this had on the fairness of the procedure leading to dismissal, I find there was none. This is because Mr Sivadasan removed himself from that process when Mr Ferraro raised the Claimant’s concerns.[86]It would have been optically better had Mr Sivadasan passed the case back to the support team to identify an alternative decision maker rather than passing it directly to Mr Bemath, but I do not consider that undermined the fairness of the process. It was not suggested that Mr Bemath was in any way influenced by Mr Sivadasan, and I do not find that he was. He was an independent manager who did not know the Claimant prior to this. The fairness of the process was not impacted by him being approached by Mr Sivadasan to take on the case.[87]Finally it was submitted that there was a procedural flaw in providing the decision makers with the materials underlying the Claimant’s previous warning. I have found as a matter of fact that the decision makers had the disciplinary invite letter, meeting minutes and outcome letter, but not the underlying evidence. In any event, I have accepted that Mr Bemath took account of the similar nature of the allegations and I find it was reasonable for him to do so, that being an objectively relevant circumstance. I find no procedural flaw here.[88]Stepping back and looking at the overall procedure, I conclude this is a case where, notwithstanding some procedural imperfections as I have just outlined, the Respondent still acted reasonably in treating the reason as sufficient to dismiss the Claimant.
Conclusion
[89]Accordingly, my judgment is that the complaint of unfair dismissal is not well-founded, and shall be dismissed. In light of that conclusion, it was not necessary to make findings as to any remedy issues, including contribution and Polkey reductions. Approved by: