J Evans v Department for Work and Pensions: 2403588/2024
EMPLOYMENT TRIBUNALS
Case No 2403588/2024
Between
Julie EvansClaimantDepartment for Work and PensionsRespondent
Before
Employment Judge HolmesMr C Moore (instructed by Counsel) for claimantMr J Kinsey (instructed by Counsel) for respondentDate 12 January 2026
REASONS
[1]By a claim form presented to the Tribunal on 21 June 2024 the claimant claimed that she had been unfairly dismissed by the respondent on 19 March 2024.[2]The respondent admitted dismissal, but contended that the dismissal was for the potentially fair reason of conduct, and that it was fair in all the circumstances. In the alternative , any compensation should be reduced, by reason of the claimant’s contributory conduct, and/or on the basis of Polkey.[3]A final hearing was re- listed for 1 and 2 September 2025, and was held by CVP. No preliminary hearing was held.[4]The claimant was represented by Mr C Moore, of counsel, and Mr J Kinsey of counsel appeared for the respondent. The respondent called Kerrie Washington , the dismissing officer, and Mike Shaw , the appeal officer. The claimant gave evidence, but called no witnesses. There was an agreed bundle, and references to page 1 of 54 numbers are to that bundle. The Tribunal heard the evidence over two days, and then reserved its judgment, with the parties making written closing submissions, which were received in time for the In Chambers sitting day to consider the reserved judgment . It was agreed that , save for contribution and Polkey issues, the Tribunal would at this stage consider liability issues only. The Tribunal apologises for the delay in promulgation of the judgment, occasioned in part by the Christmas and New Year shutdown.[5]Whilst no List of Issues had been ordered , Mr Kinsey, in his Submissions, formulated the issues as follows:a. Applying a neutral burden, was the dismissal fair (s.98(4) ERA 1996)? The ET will assess in the circumstances (including the size and administrative resources of the R) and in accordance with equity and the merits of the case whether the R acted reasonably or unreasonably in treating conduct as a sufficient reason for dismissing the C.b. In addition, was the dismissal procedurally fair?c. If the answer is no to (a) or (b), should there be a reduction in damages accounting for Polkey?d. Furthermore, should there be a just and equitable reduction to damages to account for the C’s contribution towards her dismissal?[6]Mr Moore did not specifically refer to these issues , or propose any others, in his Submissions , but said that the key legal issue was the band of reasonable responses test . He did, however, in his Submissions address the issue of contribution, and also sought an potential uplift of 25% in any compensation owing to a “flawed and unreasonable” investigation.[7]Having heard the evidence, read the documents in the bundle and considered the submissions of the parties, the Tribunal finds the following relevant facts:7.1 The claimant was employed as a Work Coach at the Crosby Jobcentre, from 23 November 2020 until her dismissal on 19 March 2024. She was employed part time, working 0.86 of a week FTE.7.2 The claimant’s employment was subject to the respondent’s Standards of Behaviour Policy (pages 431 to 432 of the bundle) ,Standards of Behaviour Procedures [pages 459 to 484 of the bundle], the DWP Acceptable Use Policy [pages 510 to 519 of the bundle]. Standards of Behaviour Procedures on the Acceptable Use Policy which makes clear that employees should not access records of customers without authorisation and legitimate business need. Access without authorisation or legitimate business need can lead to dismissal [475, 78]. Civil Service Code: employees are expected to carry out their role with integrity and honesty [page 426 of the bundle] 2 of 54 How to deal with security incidents and breaches of information security’ policy which details that unauthorised access and browsing of personal / customer records is a breach of policy and is treated as no less than serious or gross misconduct. A finding of gross misconduct is supportable where there is access to multiple customer records or access to the same record without a legitimate business reason or appropriate authorisation. Dismissal is an appropriate outcome if the manager has good reason to believe the actions to be suspicious or malicious and/or the employee provides no legitimate reason or reasonable justification for accessing records [page 488 of the bundle, 7 - 11] Remote Working Security Policy: users must always seek line management approval prior to undertaking any type of remote working [page 522 of the bundle , 4.3]. Journal Messaging Spotlight which covers the hours journals are to be responded within, the nature of the language to be used, and the deletion of messages [pages 543 – 548 of the bundle]. The How to access the levels of misconduct and to decide the penalty document lists the type of conduct amounting to gross misconduct including repeated or significant breaches of the Civil Service Code or Standards of Behaviour Policy [page 617 of the bundle]7.3 The respondent provides a range of services to the public including welfare payments and Flexible Support Funds (FSF) delivered via Job Centres. FS Funding involves a benefits claimant (termed a “customer”) applying for a locally managed budget to support individuals in finding and sustaining employment. The FSF is usually for individuals who are vulnerable, in hardship, or facing barriers to employment and cannot afford necessary items or training. This could include travel to interviews, childcare costs, tools, or clothing needed for work. To apply for FSF, a customer would typically need to contact their local Jobcentre and discuss their circumstances and eligibility with a Work Coach, such as the claimant .7.4 The Work Coach would need to establish what the customer required and for what purpose to consider whether an FSF award would be appropriate. The Work Coach should guide the customer through the necessary forms, which both the customer and the Work Coach must sign. The application is then submitted to an Authorising Officer. The Authorising Officer will review the application, and if approved, the customer will be required to provide receipts as proof of purchase within a set timeframe. The amount of FSF awarded depends on individual circumstances and needs, but as it involves public money, the Work Coach should be assessing that the FSF award is justified and is a responsible use of public funds before completing the forms.7.5 In the course of providing its services to the public, the respondent collects, processes, and retains highly sensitive and confidential personal data belonging to its customers. The protection of personal data is therefore an obligation which is taken extremely seriously by DWP. 3 of 547.6 On 9 May 2023, the Government Internal Audit Agency (GIAA) Counter Fraud Investigation Team was informed of some potential concerns that the claimant had:• applied for a budgeting advance payment for a customer (known as Customer X), and she had accepted and deferred that payment on his behalf;• submitted several Flexible Support Fund (FSF) applications for Customer X with varying signatures on dates when Customer X did not attend the Job Centre to sign those documents;• exchanged inappropriate Universal Credit journal messages with the Customer X;7.7 Upon obtaining further information about these allegations, GIAA also noticed that the claimant had regularly accessed customer records on various occasions outside of her working hours, including whilst on leave, on her non-working days, at weekends, and bank holidays and had made amendments to customer records, including Customer X’s record when she was not his assigned Work Coach, and had recorded that Customer X had attended an appointment when he did not.7.8 An Investigation into these concerns was commenced on 18 May 2023 by Elaine Rushton of the GIAA. The claimant attended an investigation interview on 10 October 2023 with Elaine. During this interview the claimant accepted that she had some online training during her induction but said that she had never been shown the Standards of Behaviour Procedure or the Acceptable Use Policy and she did not know how to use the intranet. However, when she was referred to the relevant sections of these policies, regarding avoiding putting herself in a position where work and private life is in conflict and not being permitted to access customer records without authorisation and a legitimate business need, the claimant admitted that she had been told about these and she had understood that she should not access records without a business need.7.9 During this investigation the claimant argued that she had worked outside of her normal working hours to catch up on work as she was struggling to fit in all of her appointments in the time allocated. She said she was unaware that she was not permitted to work from home. The claimant said she had not claimed flexi time for this time, because she felt it was for her own benefit. 7.10. In relation to Customer X, the claimant said she always signed off messages with an ‘x’ at the end. Elaine explained that an ‘x’ usually means a kiss and asked The claimant if there was any sentiment towards Customer X. The claimant said there was none whatsoever, their relationship was one of Work Coach and customer only. In relation to the FSF applications for Customer X, the claimant said that if she completed an application on his behalf, without him present, she would sign his name. She was asked about the differing signatures on these applications, and she accepted that this was probably because she had been signing them on his behalf. Notes of the investigation meeting with the claimant are at pages 264-271 of the bundle. 7.11 Following that meeting, on 24 November 2023 the claimant emailed Lisa Cunliffe, her manager , asking for a new OHS report (she had previously had one) 4 of 54 and a Risk Assessment (page 62 of the bundle) .Lisa Cunliffe responded on 28 November 2023 (page 61 of the bundle) stating what steps had been put in place already on site to reduce the risks of stress for the claimant , and offering a further OHS report if the claimant wanted one. The claimant responded later that day (page 60 of the bundle) to explain what her union representative had advised her, and how she wanted a further OHS report and a stress risk assessment. Lisa Cunliffe had not appreciated that its was stress risk assessment that was being sought, and provided a template document for the claimant to complete (pages 60 and 63 of the bundle) . The claimant and Lisa Cunliffe, however, met the following day, and the claimant decided not to pursue another OHS report, and subsequently never returned the SRA document that had been provided to her (see page 322 of the bundle) . 7.12. On 7 December 2023, Elaine Rushton concluded that there was a case to answer in respect of these concerns as there was a potential breach of DWP’s policies, namely the Standards of Behaviour Policy [pages 431-432 of the bundle], Acceptable Use Policy [pages 510-519 of the bundle], and the Civil Service Code [pages 423-430 of the bundle]. Her report is at pages 66-73 of the bundle, and the appendices are at pages 76-271 of the bundle. 7.13 Elaine Rushton referred the case to the disciplinary stage, and Kerrie Washington, Business Support Manager of the Merseyside District office was asked to be the Decision Maker on 28 November 2023 by the Merseyside Business Support Team. On 8 December 2023 Elaine Rushton emailed her with the investigation report [page 65 of the bundle], re-sending it to her on 9 December 2025 [page 74 of the bundle]. After a period of leave Kerrie Washington then received the appendices on 11 December 2025 [pages 75-271 of the bundle], and, on her return from leave, around 21 December 2023, she reviewed all of the evidence included within the investigator’s report. This included the documentation regarding the FSF payments that is at pages 76-97 of the bundle, the claimant’s flexi leave history at pages 98-100 of the bundle, the audit trail dated January 2023 – September 2023 at pages 101-227 of the bundle, history notes on the universal credit bills at pages 228-239 of the bundle, copies of the journal messages to the Universal Credit customer being referred to as part of this claim as ‘Customer X’ at pages 240-259 of the bundle, the Universal Credit Record for another customer at pages 260-263 of the bundle and the Investigatory interview summary at pages 264-271 of the bundle. 7.14 When reviewing the FSF Payment Applications [pages 76-97 of the bundle], she looked at the signatures and noted that the signatures varied in places. For example, the signatures at pages 78, 81, and 84 all involved Customer X’s first initial, followed by his last name, whereas the signatures at pages 87, 92 and 96 were his first name and last name. Kerrie Washington also cross-referenced the dates that the awards were made against what was on the history notes [pages 228-239 of the bundle] and there was no record on the history notes that the customer attended the Job Centre when some of the applications were signed. For example:• the FSF applications at pages 80-85 was supposedly signed by Customer X on 22 February 2023, however page 235 of the history notes show that an appointment 5 of 54 was booked for Customer X on 15 February 2023, with the appointment being booked for 23 February 2023. Page 234 of the bundle records Customer X attending the appointment on 23 February 2025, not 22 February 2023.• the FSF application at pages 86-88 of the bundle shows it was signed by Customer X on 8 March 2023, however the customer history (page 234 of the bundle) has no record of him attending the office on this date.• the FSF application made at pages 89-91 of the bundle states that Customer X signed this on 8 April 2023, however the history notes do not reflect that he attended the office on this day [pages 232-233 of the bundle]. The date 8 April 2023 is a Saturday, and the claimant was not working on this date, although the Audit Data shows she was logged on to DWP’s systems from 1.40pm to 9.24pm [page 148 of the bundle]. The Crosby Job Centre ceased its Saturday operation from 22 October 2022 so the Job Centre was not open on this date, and therefore the claimant should not have been working on this date.• the FSF application at pages 92-94 of the bundle which was said to be signed by Customer X on 25 April 2023 was not reflected in the customer history notes, as this did not record that he attended the office on this date [page 231 of the bundle].• the FSF application at pages 95-97 of the bundle was signed by Customer X on 9 May 2023, but the history notes do not reflect that he attended the office on this date, page 231 of the bundle. 7.15 There were also two FSF awards made to Customer X where there was no paperwork at all, just the history notes. One was for a phone at a cost of £129.99 which was awarded to Customer X on 14 March 2023 [page 233 of the bundle]. There was no evidence that the customer requested this item, he just mentioned that his contact might be intermittent as his phone was broken [page 249 of the bundle]. Kerrie Washington’s expectation was that a customer would ask for support with an item before an FSF award was made, and even then a Work Coach should be making enquiries about what other communication methods were available to the customer before making such an award, particularly as he was able to still engage with the claimant via Journal message not withstanding any mobile phone issue. 7.16 The other award with no paperwork was for a medical assessment to get Customer X’s driving licence back in the sum of £118.20 which was awarded on 25 April 2023 [page 231 of the bundle]. Again there was no evidence that this was required. 7.17 She also looked through the journal messages [pages 240-259 of the bundle] to get some feel for the contact between the claimant and Customer X. Some of the contact was very informal and was more akin to text message communication that she considered a person may send to someone to whom they were close. This was not what she expected to see as a Work Coach liaising with a customer in their professional capacity. 6 of 54 7.18 She reviewed the claimant’s audit report in detail and counted how many times Customer X appeared in that report using his National Insurance number, (redacted from the bundle) . This exercise showed her that the claimant had accessed Customer X’s records over 100 times during the period of 1 January to 15 September 2023, and she had deleted 11 messages to Customer X on 26 June 2023 which could not be retrieved. She considered this very odd. She could understand the odd deletion if a message had been sent in error but 11 deletions in a short period of time was particularly odd. The claimant had also viewed Customer X’s journal account 124 times on 26 June 2023. 7.19. Kerrie Washington also used this audit report to assess how many times the claimant had accessed her computer outside of working hours. Her working hours were Tuesday to Friday, 8am to 4pm. Whilst overtime at weekends and bank holidays was sometimes required, the investigation report found that no overtime had been authorised since December 2022 [page 70 of the bundle]. However, the audit trail showed that the claimant had accessed customer records outside of her normal working hours/working days on several occasions between January 2023 and September 2023. The entries slightly before 8am or slightly after 4pm on her working days did not concern her as the claimant could have just started work slightly earlier/finished slightly later on these days and therefore she probably had a legitimate business reason to access the records on these occasions. However there were around 30 occasions where she had accessed customer records late at night or in the early hours of the morning (between 7pm and 6am) [page 119, 121 – 124, 135-158, 160-161, 176-181, 187-211, 216 of the bundle] and over 40 occasions where she had accessed customer records on a weekend, bank holiday or on her non-working day [pages 102 and 114-115, 124-135, 145-153, 160-175, 181-222 of the bundle]. 7.20. Kerrie Washington looked through the guidance available on the DWP intranet. The DWP intranet is accessible by every employee in DWP, and it is shown to everyone during their induction. She quickly came across the FSF Awards Spotlight which was developed to support the FSF application process [pages 281- 288 of the bundle]. An update was provided to the FSF Awards Spotlight on 29 May 2023 to remove the requirement for a wet signature from the customers, however all of the incidents involving the claimant’s work pre-dated this, so a wet signature was still required for the FSF Awards in question. Once an FSF Award has been agreed and signed by the customer, the Work Coach should then pass the forms to the appropriate staff member to approve. The approval at this stage is to ensure DWP are not paying for obviously inappropriate items (such as safety clothing which by law must be provided by an employer) and that the customer is not in an incorrect work group to be paid FSF awards. The approver will not review the journal notes and critically assess the Work Coach’s decision to award an FSF payment in the circumstances. The Work Coaches are trusted to make these decisions themselves. Once an FSF Award is approved, the customer history must be updated to reflect the award, and the customer must be asked to provide receipts or proof of purchase within 14 days of the award being made. 7.21 She also came across the Journal Messaging Spotlight which covers what was expected of Work Coaches in their communication [pages 542-550 of the bundle]. The Journal Messaging Spotlight confirms that the journal belongs to the customer, 7 of 54 so they have ongoing access to the messages shared via the journal messaging system. Whilst the customer can use the journal 24 hours a day, 7 days week, they should be made aware that their messages will not be responded to outside of office hours of 8am to 6pm. It explains that journal entries must be clear, concise, and free from text speak, emoticons should not be used, and reasons should be given when asking a customer to provide information or take action. Journal messages should only be deleted in limited circumstances, for example if an error is noted or if they are sent to the wrong customer pages 548-549 of the bundle]. It is also best practice to immediately replace the message with the correct information, with a brief explanation to the customer as to why the message has been deleted, or if it is not necessary to replace the message place a note on the journal explaining the deletion to avoid causing confusion [page 549 of the bundle]. 7.22 As an employee of DWP, the claimant had access to DWP’s intranet and could have reviewed these two Spotlight documents at any time. Kerrie Washington was also aware that team leaders and managers actively encourage employees to go to the intranet in the first instance before reaching out to them for a query, so the DWP intranet is a common resource for DWP employees. 7.23. Having reviewed this material, Kerrie Washington then invited the claimant to a disciplinary meeting by way of letter dated 28 December 2023 [pages 275-279 of the bundle]. This letter set out the allegations against the claimant in detail and notified her that the allegations were considered to be gross misconduct, and a potential outcome of this hearing may be summary dismissal if they were proven. It also advised the claimant that she was entitled to attend the meeting with either a Trade Union Representative or a colleague and referred her to a link to the discipline guide for employees. The disciplinary meeting was scheduled for 12 January 2023, at 2pm, via Microsoft Teams. All of the evidence gathered as part of the investigation was sent to the claimant separately so that she could review this ahead of the hearing [page 280 of the bundle]. 7.24. Kerrie Washington contacted HR in early January 2024 to let them know what she had done in respect of this case to date and to discuss what questions to ask at the disciplinary. 7.25 On 6 January 2024 Kerrie Washington emailed the claimant’s line manager regarding the missing paperwork for two FSF awards that the claimant applied for on Customer X’s account. Her line manager confirmed that there was no paperwork for these two awards [page 291 of the bundle]. Following this email, her line manager called Kerrie Washington and asked if the claimant needed to be suspended pending the disciplinary decision. 7.26 Kerrie Washington discussed this with HR, who advised that suspension did not appear necessary at the moment, but it would be kept under review. 7.27 She spoke again to the claimant’s manager again on 11 January 2024 via telephone to update her of the advice she had received on suspension. She also asked the claimant’s manager whether there were receipts for the two FSF awards the claimant had made to Customer X which did not have paperwork and if she knew why the claimant had gone to the lengths she had to assist Customer X. The 8 of 54 claimant’s line manager confirmed there were no receipts for the FSF awards in question and she could not understand why the claimant had gone to the lengths she had to assist Customer X. She also emailed Kerrie Washington on 12 January 2024 with some journal entries we had discussed in relation to Customer X, [pages 294-296 of the bundle]. These entries are in the journal messages at pages 240- 259 of the bundle. 7.28 Once Kerrie Washington had reviewed all of the documents, she put together a stencil of questions to ask the claimant in preparation for the disciplinary hearing. These questions then formed the notes of the disciplinary meeting with The claimant. 7.29 The disciplinary meeting took place with the claimant on 12 January 2024. The meeting took place face to face rather than via Microsoft Teams as originally proposed at the claimant’s or her Trade Union Representative’s request. The claimant was accompanied by a Trade Union Representative, Geoff Burns. 7.30 Kerrie Washington started the meeting by asking the claimant about the FSF awards. The first FSF award that the claimant had made for Customer X was on 10 February 2023, for 8 days of travel, totalling £38. The FSF application stated that the receipts for the travel were attached [page 77-79 of the bundle]. However, during the journal messages the customer said the course was 5 days long, with his travel costing £4.75 per day, which totals £23.75 [page 258 of the bundle]. The claimant asked him to come into the office to sign the form with his receipts so that she could make the application for an FSF award for him for this travel. Customer X responded to say that his daughter had binned the receipts, so he would write off the costs. meeting. 7.31 Despite this, the claimant had made an application for this award on 10 February 2023, but for 8 days instead of 5 days, meaning the customer was awarded more than he had incurred. In addition, he could not evidence the travel because he had not kept the receipts, which is a requirement for making an FSF Awards [pages 281-288 of the bundle]. Kerrie Washington asked the claimant why she awarded this customer 8 days travel instead of 5 and why no receipts were provided. The claimant said she had included the weekend in this award, despite it being clear from the customer’s journal message that he did not travel beyond 27 January 2023, so he did not incur travel on the weekend. The claimant did not explain why she had allowed this award to be made when no receipts were provided. It was explained to the claimant that she should refer to the FSF Spotlight document for guidance on this. The claimant said her training on FSF awards had been minimal. 7.32 There was a further FSF award for travel signed off by the claimant on 23 February 2023 which was listed for Stage Coach tickets x2 at a cost of £4.20 [pages 80-82 of the bundle]. There was no evidence in the journal messages that the customer had requested support with this travel [pages 253-254 of the bundle], the entry for this award did not say when the travel took place, and as mentioned above the form indicated that Customer X signed it on 22 February 2023 despite there being no record of the customer attending the office on this date. Kerrie Washington asked the claimant about this and how the request for this award came 9 of 54 about. The claimant failed to answer her question and repeated that she had never been shown the correct process for FSF applications but accepted that the application for this award was not correct. The claimant said that the customer signed this form, but he had a problem with his hand so sometimes his signature differed. However, this did not explain why there was no records of his attendance at the office on this date. 7.33 The claimant was asked about a further FSF award made on 23 February 2023 for a first aid course for Customer X. The course was due to commence on 20 March 2023 at a total cost of £50. The documents show that Customer X signed this document on 22 February 2023 [pages 83-85 of the bundle], but as mentioned above there was no evidence he attended the Job Centre on this date. Kerrie Washington asked why this award was processed a month before the course was due to commence and why the customer’s signature differed from the other signatures. The claimant failed to answer her questions but said that she advised all customers to attend the Job Centre to sign the relevant paperwork, which contradicted what she had told Elaine at the Investigation hearing and said she had not signed this document. The claimant explained that she had passed the customer to the service delivery team to sign the document, so she could not say if it was his signature. 7.34 Customer X was on a demolition SWAP (Sector – based Work Academy Programme, the Tribunal believes) on 6-17 March 2023, however his history notes on 10 March 2023 states that he attended the Job Centre at 2.43pm [page 234 of the bundle] but the journal message states that his appointment that day had been changed to a telephone appointment [page 250 of the bundle]. The claimant was asked if the SWAP had ended early to allow him to attend the office. The claimant again failed to answer her but said that now she had explained the process, she realised she needed to put information in the history notes. 7.35 A further FSF application for a laptop was made on 14 April 2023 for the demolition SWAP, with the documentation showing that Customer X signed the paperwork on 8 April 2023 [pages 89-91 of the bundle]. However as mentioned above there was no evidence he attended the office on 8 April 2023 to do this and the customer should have attended the demolition SWAP a month earlier, on 6-17 March 2023, according to the journal notes [page 249 of the bundle]. The claimant said she could not answer this as it was too long ago, and she thought the course may have gone on beyond the dates in March 2023. 7.36 Kerrie Washington asked the claimant about two FSF awards that had been made for Customer X for a mobile phone and for medical costs, but there was no FSF paperwork completed. The claimant said there must have been paperwork completed for these items, however Kerrie Washington had already spoken to her manager who confirmed that there was none on file. Kerrie Washington asked the claimant why she collected the mobile phone on behalf of the customer, as the customer should be the one to collect the item as per DWP’s process for online ordering [pages 404-409, particularly page 405]. The claimant said that she had done this on many occasions for various customers and she considered it safer for her to collect the item and store it at work for the customer to collect from her. However there was no evidence from the documentation that the customer had 10 of 54 attended the office to collect the phone from the claimant. The journal messages showed that Customer X asked the claimant to post the phone to him, but she refused to do this and repeatedly asked him to call her to explain. A day later she sent a Journal Message to Customer X saying, ‘Hope your phone is ok…’. Clearly Customer X received the phone, but it is not clear from the paperwork how he obtained it [page 249 of the bundle]. Kerrie Washington asked the claimant why she had chosen to message the customer about the phone on a non-working day [page 250 of the bundle]. The claimant said she would regularly log on at a weekend and she did not realise she was not permitted to do this. 7.37 Kerrie Washington asked the claimant if the customer had attended the office on 25 April 2023 in respect of the medical award and how she had become aware that this needed to be covered by an FSF application, as there was no record of this. The claimant said she could not confirm this and accepted that she needed to document everything going forward. She asked the claimant how she would record an ad hoc appointment when a customer attends the job centre unscheduled. She said she vaguely knew how to do this. The claimant did not inform her that at any time in relation to the occasions in question that the customer had attended the office on an ad hoc basis, and she had just failed to record it. 7.38 Kerrie Washington reminded the claimant about the Accessing Customer Experience: standards [pages 551-553 of the bundle] and in particular the requirement to always be professional and to avoid unnecessary repeat contact. She also reminded her of the Journal Messaging: Spotlight document which states that text speak should not be used and the customer profile and history should be updated clearly and accurately [pages 542-550 of the bundle]. The claimant said that she was aware that she should not sign off Journal messages with an ‘x’ however, she stated that she was not aware of the spotlight on Journal Messaging. Kerrie Washington said that it was not appropriate to sign off messages with ‘xx’ and the closing salutation should be professional. 7.39 Kerrie Washington went through the messages between her and Customer X on 2 February 2023 and asked if she felt these messages demonstrated the customer service standards expected of DWP employees. The claimant did not respond to this question. She asked her to explain her interpretation of the messages, and she accepted that they were not right, and they were suggestive messages. Kerrie Washington said that she considered them of a sexual nature, and she agreed with this. Kerrie Washington then referred the claimant to the journal messages to Customer X which repeatedly stated that the claimant needed to speak to him via telephone and had left voicemails [pages 242-254 of the bundle]. She asked her why she needed to speak to him via telephone and why she did not disclose via journal message what she wanted to discuss with him, as is required by the Journal Messaging Spotlight document. She did not provide her with any explanation for this. She asked the claimant why Customer X wished to speak to her manager during the period of 12 April 2023 [page 245 of the bundle]. The claimant said that this was to do with the Fiddlers Ferry Demolition. 7.40 Kerrie Washington asked why she had approved a budgeting advance of £348 for Customer X when this was not part of her role and why she had deferred it straight away [page 231 of the bundle]. Budgeting advances are made by a Case 11 of 54 Manager in DWP’s Service Centre, save for the first advance made when a customer signs up to Universal Credit which can be done by a Work Coach. This is communicated to all Work Coaches when they join. The claimant said she had not been told that she could not approve a budgeting advance, but she was told by a colleague that she should never do this for her own customers. Customer X was her customer at this point, so Kerrie Washington could still not understand why The claimant did this based on her own explanation. She asked why she had verified Customer X’s medical evidence on 10 May and 4 June 2023 [page 230 of the bundle] when this is actioned by another team and Customer X was not her customer on 4 June 2023. The claimant said that she had understood that another team had only been allocated to do this in the last couple of weeks. 7.41 Kerrie Washington then asked the claimant why she had been working at home , and she explained that she did not have enough time in her day to complete the work. She went on to ask why she had messaged Customer X several times outside of her normal working hours and she repeated that she did not have enough hours in her working day to complete her work and she was being conscientious by working outside of her normal working hours. She asked why this additional work was not recorded as Flexitime. The claimant did not answer this. She asked why she had logged on in the early hours of the morning on several occasions and viewed customers’ profiles or colleagues’ workloads. The claimant said she did not sleep well so sometimes she would log on and work to help reduce her case load. 7.42 Kerrie Washington explained that there were 140 occasions during which she viewed Customer X’s file either on a non-working day or out of normal office hours and this included times when he was no longer her customer. In addition on 26 June 2023, which is the claimant’s non-working day, and she was not Customer X’s allocated Work Coach at this time, the audit trail shows that she created around 12 messages to Customer X and then deleted 11 of them [pages 197-202 of the bundle]. Kerrie Washington asked her to explain this to her, but she did not give her a clear answer. She asked her to explain why she had reviewed 59 customer records in an hour on a bank holiday Monday. The claimant said she could not remember. Kerrie Washington was not satisfied with the explanations she was providing her, so she asked her to consider the entries and come back to her with her explanation when she had taken the time to digest them. 7.43 The claimant was assigned to Customer X as his Work Coach from 6 January 2023 to 16 May 2023, but she had continued to review his file until September 2023. Kerrie Washington asked why she had continued to do this, and the claimant said that she was still in contact with Customer X about the Fiddlers Ferry SWAP. Kerrie Washington explained that this was the responsibility of his assigned Work Coach at the time, not the claimant’s. The claimant said that the Work Coach assigned to Customer X was on leave at the time, so Customer X had asked the claimant if there were any messages about Fiddlers Ferry during an appointment he had attended at the job centre. 7.44 Kerrie Washington asked if there was anything further to add or discuss before she concluded the meeting. The claimant’s Trade Union Representative summarised that the claimant’s mitigating factors were her not having the correct training or support. In the meeting, he said [page 317 of the bundle]: 12 of 54 GB - There has been a lack of support for Julie since joining, lack of training and with the right support, she may not be sitting here today. And [page 319 of the bundle] : GB – Mitigation factor since Julie became a Work Coach she has struggled through lack of training and support. She has no mentor; she made her time up to meet her workload by doing things outside of work hours. This could have been stopped if the right training and support had been given. 7.45 Kerrie Washington concluded the hearing to allow her time to consider the evidence, against what the claimant had informed her. Notes from the hearing are at pages 298-319 of the bundle. 7.46 Kerrie Washington felt that throughout the hearing the claimant had not responded to her direct question, which made her question the credibility of her version of events. In the days that followed she did not hear anything further from the claimant or her representative in relation to the audit trial which Kerrie Washington had asked her questions on during the disciplinary hearing. 7.47 Kerrie Washington therefore followed this up with her Trade Union Representative on 17 January 2024, and asked them to have any further comments with her by no later than Friday 19 January 2024. She confirmed this request via email that same day and that she hoped to make a decision on this case in the next two weeks [pages 606-607 of the bundle]. 7.48. On 18 January 2024 the claimant’s Trade Union Representative emailed Kerrie Washington to provide explanations for some of the entries on the audit trial [pages 605-606 of the bundle]. However their focus was on the entries slightly before or after her normal working hours, and between 1 January 2023 and 7 March 2023 which were not of great concern to her. In relation to her accessing records on her other, non-working days, weekends and bank holidays, however, in the email Geoff Burns said this [page 606 of the bundle] : “The other Audit Data entries show entries Julie’s non-working days. The reasons for this have been explained by Julie in general terms in the interview last Friday. It has been common practice for staff to take their equipment home when they left as they were instructed to by their line managers. Julie has not received the training and support she should have had, and has struggled. She worked on her nonworking days to catch up with her. No support was given to Julie to help her with her work, and she has had a large Caseload since she began as a Work Coach. Her current Caseload is 164, when her Caseload should be around 110. This is a failure of line management. Regarding the large number of entries for one particular claimant, Julie has said that a significant number of those entries related to, as far as she can remember connected to FSF appplications [sic].” 13 of 54 Kerrie Washington remained unsatisfied with these explanations. In relation to the large number of entries for Customer X, the claimant said that she believed that these were connected to FSF applications. Kerrie Washington did not feel the further explanation in this email added anything further to what was discussed at the disciplinary hearing. 7.49 Kerrie Washington contacted the claimant’s manager Lisa Cunliffe on 15 January 2024 to check if the claimant had undertaken ‘Think Secure: Security and Data Protection training’ which is mandatory training that employees should complete each year. This training covers issues with system access including accessing systems from home. Her manager confirmed that she had completed this training for the last two years, with the last training session taking place in January 2023, just before the incidents in question took place [page 320 of the bundle]. She also asked the claimant’s manager if there was a buddy system in place so that staff caseloads are covered during their leave and her manager confirmed that the whole team cover each other’s diaries [page 322-323 of the bundle]. Lisa Cunliffe also told Kerrie Washington about the claimant’s request in November 2023 for a further OHS report, and to complete an SRA [pages 60 to 62 of the bundle, referred to above] and how neither were then pursued by the claimant. 7.50 As such, Kerrie Washington did not accept the claimant’s version of events that she needed to log on from home because she worked part-time, and she was struggling to cope with the workload. The claimant had accepted in the initial investigation that she should not access a customer’s records without legitimate business reasons and authority. Kerrie Washington was satisfied that the claimant should have been aware that working from home without permission was not permitted and that she should not be viewing customer data without legitimate reasons. She was also aware that the Work Coach induction covered the Standards of Behaviour policy, Acceptable Use policy and the ‘How to: Deal with security incidents and breaches of information security’ [pages 485-509 of the bundle]. This is to ensure that all employees are aware that they must have a legitimate business reason and authorisation to look at personal information on DWP’s systems, and a failure to adhere to this will be considered a breach of information security. In addition, every time a Work Coach logs on to DWP’s systems a pop up comes on the screen reminding them that they need to adhere to these policies and the employee has to click to acknowledge the pop up to get remove it. Therefore, every day the system would have reminded the claimant about these policies. 7.51 Kerrie Washington looked into the demolition SWAP dates and the course was listed for 6 March to 17 March 2023 only, with no additional dates scheduled after this period, despite what the claimant had suggested to her [page 321 of the 7.52 On 31 January 2024 Kerrie Washington notified the claimant that she hoped to have a decision with her by 8 February 2024, [page 324-325 of the bundle. 7.53 Having checked all the documents again Kerrie Washington found that the claimant had frequently made applications for financial support for Customer X via the FSF scheme where there was not a clear indication that Customer X had requested this support and where the signature varied on each application. Some of 14 of 54 these applications were dated when there was no evidence of Customer X having attended an appointment. The claimant had said she could not explain this, but she had 100% not signed this on Customer X’s behalf. She also said that the customer had a hand injury so his signature may have varied for that reason, and she had not been trained. There were no notes on the customer’s record that he had a hand injury, but Kerrie Washington nevertheless considered this as a potential explanation for the verifying signatures. However, she noted that the claimant had not given this explanation to Elaine Rushton at the investigation stage. Instead she had accepted that sometimes she signed customers’ names on their behalf. In addition, Kerrie Washington thought it was unlikely that someone would change their signature to a different format entirely i.e. from the initial and last name, to the first and last name, because of a hand injury. As such she was not persuaded by the reasons the claimant had given her for the varying signatures. 7.54 Kerrie Washington believed that these documents were not all signed by Customer X and had therefore been fraudulently signed. She also found that the claimant had also accessed Customer X’s record when she was not his assigned Work Coach. She was assigned to Customer X from 6 January 2023 to 16 May 2023, however, on 28 and 29 May 2023, she accessed Customer X’s records and temporarily re-added herself as his assigned Work Coach for these two days, without authority, before reverting it back to the correctly allocated Work Coach [page 230 of the bundle]. The claimant also continued to book work search review appointments for Customer X, checked his medical evidence and the people he resided with, and liaised with him until early August 2023 [pages 229-230 and 241 - 242 of the bundle]. 7.55 As far as Kerrie Washington could see, the claimant had no business justification or authority to access these records during this period, or to take the action that she did on his account. 7.56 During the investigation process, the claimant had explained that she had added herself as Customer X’s Work Coach at the end of May 2023 because she had been on leave, and she thought her colleague was only temporarily assigned to this customer during this period. However, when she was informed that there was a change of customer allocations, she changed his Work Coach back to the correctly allocated individual. This did not explain the access after 29 May 2023, and when Kerrie Washington asked her about these instances during the disciplinary hearing, she said that she had not realised that she was no longer his Work Coach for two months. Kerrie Washington did not accept the claimant’s version of events in relation to this, particularly when she was the one who removed herself as her allocated Work Coach on 29 May 2024 which appeared to match her explanation at the investigation hearing. 7.57 The claimant had explained that she that she was booking appointments for Customer X when she was no longer his Work Coach as she had been following up on a construction role that she was previously helping him with. Kerrie Washington accepted her explanation in relation to the booking of appointments as there was evidence in the journal notes of her arranging appointment for a construction role by the journal notes, but she could not understand why she had done this when it was not necessary for her to do so because he had an assigned Work Coach at the 15 of 54 time, and why she would take on this extra work when she was telling her she was so overwhelmed with her own work load. 7.58 In relation to the inappropriate journal messages, it appeared from the journal entries that the claimant had spoken to the customer via telephone on 31 January 2023, and this conversation appears to have led to what she considered inappropriate and flirty messages being exchanged between them. Customer X seemed to instigate this as he first messaged The claimant to say, ‘Really enjoyed out [sic] chat call me ANYTIME’. The claimant’s response to him was in relation to work but she signed off the message, for the first time, with an ‘x’. Customer X responds ‘Friday I’d [sic] D Day so keep those legs crossed. Fingers. Sprinkle some luck on me. You’re a star You’ve got my number!’. He followed this message with ‘..fingers NOT legs with such support form [sic] a lady I can’t possibly fail. Really looking forward to hearing from you VERY soon again you have my personal number’ [page 258 of the bundle]. The claimant’s messages remained professional in response although she continued to sign off some of the messages with an ‘x’ or two [page 257 of the bundle]. 7.59 Customer X and the claimant appeared to have a further telephone call on the afternoon of 1 February 2023. The conversation that followed this call seems to indicate that the call was, at least in part a social rather than purely a work call as Customer X sends a journal message later that day referencing a non-work related discussion at 3.58pm. The claimant responded, ‘I will discuss it tomorrow if you don’t mind LOL LOL’. Customer X responds ‘Have a good fit to tell me (story). Until our next rendezvous XX’. The non-work related messages continued the next day with the claimant continuing to use slang such as ‘LOL’ in her response to Customer X’s flirty messages and engaging with him when he appears to make what she believed to be sexual innuendos. The claimant had accepted in the meeting that the messages could be considered of a sexual nature. 7.60 Although the claimant then continued to have a relationship more akin to a professional Work Coach / Customer relationship, the claimant then seemed to be desperately trying to speak to Customer X by telephone between the middle of February and April 2023 [pages 242-254 of the bundle]. Customer X however, did not appear to want to speak to her via telephone and kept asking her to send a message via the online journal instead. He seemed to become frustrated with the claimant’s requests for a call and started to mention speaking to her manager if there was a problem [pages 245- 252 of the bundle]. Despite this, she continued to ask for a telephone call with him, with no explanation as to what this was about or why she could not set out what she wanted to say via the journal messages. 7.61 Whilst Kerrie Washington was satisfied that the flirtatious messages were instigated and led by Customer X, these messages were not in any way work related, and the claimant had continued to engage with him and did not try to stop his inappropriate messages, nor did she report them internally. She therefore considered that the claimant had engaged in inappropriate messages via DWP’s system to Customer X between 31 January 2023 and 2 February 2023 and behaved inappropriately by continuing to engage with the customer in this way. The claimant had also signed off her messages with a ‘x’ which she considered to be a sign of affection and not an appropriate sign off as a message to a customer. The 16 of 54 claimant had argued that she always signed messages with an ‘x’ and was trying to imply that this was just her style rather than an inappropriate gesture to a customer. However, she did not accept this was correct given the context of the message and given that ‘x’ was predominantly used during the messages exchanged with Customer X between 31 January 2023 and 2 February 2023. Before these messages the claimant had not finished her messages to Customer X with an ‘x’ [pages 258-259 of the bundle]. However the inappropriate messages started, and she began to add an ‘x’ to the end of her messages [page 259 of the bundle]. 7.62 The claimant had also created 12 journal messages to Customer X and then deleted 11 of them shortly after this. When asked why she did this, she failed to provide Kerrie Washington with any explanation. She thought it was odd that the claimant would delete so many messages to Customer X in a short amount of time and could not come to any logical conclusion about why the claimant would do this, other than if she was continuing to engage with him in an inappropriate way. 7.63 Kerrie Washington therefore considered that the content and language used in the journal messages was not moderate, respectful, and professional, and they did not maintain the high standards of service expected of DWP employees. She considered that they could bring DWP into disrepute if these were seen by members of public given the sexual innuendos contained within them. As such The claimant’s behaviour fell below the standards outlined in DWP Standards of Behaviour in her opinion [pages 431-432 and 459-484 of the bundle]. 7.64 In particular, she considered how paragraph 3 of the Standards of Behaviour Procedure states that DWP’s reputation depends on the quality of service and the way its employees conduct themselves and employees should act professionally in light of this. Kerrie Washington also considered that her actions in relation to the journal messages failed to meet the Civil Service Code [pages 423-430 of the bundle] regarding acting with integrity, which includes always acting in a way that is professional. She felt that the claimant had put her own personal interest in Customer X before her obligations of public service by engaging with Customer X in an unprofessional manner. She considered that if her messages had been seen by members of the public, it may undermine the confidence of all those with whom DWP have dealings. 7.65. Kerrie Washington also considered that the claimant had falsified records by signing some of the FSF awards on behalf of Customer X and had made FSF awards which in some instances did not appear to be requested or supported by relevant justification (such as the laptop, mobile phone, medical, 8 days of travel costs for a 5 day course, the two Stage Coach tickets). Paragraph 59 of the Standards of Behaviour Procedure states that employees should not expose themselves or DWP to any financial activities that could be seen as inappropriate and that employees have a duty to use public money responsibly. She considered that some of the FSF awards the claimant made to Customer X were likely to be in breach of this section of the policy. Further paragraph 2 of the Standards of Behaviour Procedure states that the correct procedures should be followed in all matters to ensure responsible use of public money, that employees should ensure money, property and other funds are properly safeguarded and not used 17 of 54 inappropriately, and that customers receive only benefits and funds to which they are entitled. 7.66 Kerrie Washington was satisfied that the claimant’s approach to the identified FSF awards for Customer X were in breach of this. In addition, paragraph 78 of the Standards of Behaviour Procedure states that all employees must comply with the Acceptable Use Policy to ensure they understand their responsibility for the use of DWP information and must not access the records of customers without authorisation and a legitimate business need in line with that policy. Failure to comply with this policy is treated extremely seriously, will result in disciplinary action, and may result in dismissal [pages 510-519 of the bundle]. She was not satisfied that the claimant had legitimate reasons to access the customer records she did outside of her normal business hours, nor was she satisfied with the reasons she gave for accessing Customer X’s records following her no longer being his Work Coach, particularly after 29 May 2023. 7.67 Kerrie Washington also found that the claimant had also breached section1.1 and1.2 of the information Security Matrix [page 490 of the bundle] by repeatedly viewing Customer X’s file outside of working hours and at times when she was not his allocated Work Coach. 7.68 Kerrie Washington spoke to the HR caseworker regarding her findings and what sanction she considered appropriate. She considered that all three issues individually were gross misconduct, but if she was looking at just one as a one off incident, she may have decided to issue a lesser sanction, such as a final written warning given it was the claimant’s first offence. However, the claimant had demonstrated a repeated breach of DWP’s policies which she considered amounted to and should be treated as gross misconduct because the trust and confidence in her had gone, and she felt dismissal with immediate effect was an appropriate sanction. HR agreed with her decision [pages 326-327 of the bundle]. 7.69 Before finalising her decision, however, she wanted to speak to the claimant’s manager about the mitigation that the claimant had put forward regarding lack of training/support which she said resulted in her not being competent in the FSF process and her having too much work to do. The claimant had been in post for nearly 3 years by the time the incidents in question became known, so Kerrie Washington expected her to be fairly experienced in the role by that point, but she wanted to clarify this with her manager. She notified the claimant of this delay on 16 February 2024 [page 328 of the bundle]. 7.70 Kerrie Washington emailed the claimant’s manager with some queries regarding The claimant’s caseload concerns on 5 March 2024. She also asked if she was aware that the claimant was logging on at home to keep on top of her caseload, and whether she was aware that the claimant was not confident with the FSF award process. Her manager said that the claimant had never raised caseload concerns with her, she was unaware she was undertaking work from home until the investigation commenced, and the claimant had never mentioned that she was not confident with the FSF process [page 329 of the bundle]. The Remote Working Security Policy states that to work from home whether this is occasional or regular, users must always seek line management approval, prior to undertaking any type of 18 of 54 remote working. This Policy is at pages 520-529 of the bundle, in particular section 4.3, page 522 of the bundle. The evidence from the claimant’s line manager confirmed that no approval was given to allow her to work at home. 7.71 On 11 March 2024 Kerrie Washington contacted HR again to seek further guidance regarding a potential dismissal for gross misconduct and the next steps [page 330 of the bundle]. Following this discussion, she completed the disciplinary outcome notification form [page 331-345 of the bundle] and drafted the dismissal letter. On 19 March 2024, she wrote to the claimant to advise her that she had found that she had committed gross misconduct and as such Kerrie Washington had decided that she should be dismissed with immediate effect, without notice. This letter included details of the claimant’s right to appeal her decision [pages 346- 357 of the bundle], which was to be to Nicolas Bridge . 7.72 On 25 March 2024, the claimant’s Trade Union Representative, Dave Campbell, asked Kerrie Washington who had appointed Nicholas as the appeal manager as he did not consider that the criteria for appointing appeal managers had been met as Nicholas was from the same business unit as the claimant. After some discussion Kerrie Washington received an mailed to say that Mike Shaw (CMG Northwest Area Change Manager) was now going to be the appeal manager and Dave Campbell had been made aware [page 362 of the bundle]. 7.73 The claimant appealed the decision to dismiss on 15 April 2024 [page 363-364 of the bundle], in an email submitted by her union representative. The grounds of appeal were set put as follows: The grounds for appeal are: 1) Julie acknowledges that she did access DWP systems and complete DWP work outside normal operating hours. However, this was done in order to manage a workload that is not manageable in the course of the working day. PCS point out that this is now a common practice across all grades in the Jobcentre Plus network, indicating that the Acceptable Use Policy is outdated and no longer fit for purpose. PCS can provide evidence of HEO activity on DWP systems (such as Outlook and the UC build) outside both normal operational hours and approved overtime hours. PCS believe that it is perverse to punish an EO officer for imitating the actions of senior managers who go unpunished. 2) Julie acknowledges that she has been involved in making payments to claimants from the Flexible Support Fund. It should be considered that Julie has not received sufficient and adequate training to be proficient in the use of Flexible Support Fund. Further, Julie did not make payments from the Flexible Support Fund. As a Work Coach completing the FSF1 form, this is a proposal to make a payment. The Work Coach completes parts 1 to 5 of the FSF1 and also parts 7 and 8, this is a proposal to pay only. At this point no payment has been made. The person who authorises the payment in part 6 is responsible for checking that all of the details entered on the FSF1 are correct and that the claimant is eligible to receive support from the Flexible Support Fund. At this point, payment is yet to be made. Part 9 of the form is completed by the paying officer. This section is completed by the person who releases the funds, based on the authorisation at Part 6. The person releasing the 19 of 54 funds must ensure all relevant fields in Parts 7 and 8 are complete and separation of duty is clear in Parts 5 and 6, for example, different people have performed the different roles. It is clear, then, that the Work Coach, in this case Julie, does not make payments of Flexible Support Fund and it is the signatories in parts 6 and 9 who are responsible for the payments. PCS believes that there is also a failure to follow procedure in that if the implication here is that fraudulent activity has taken place then the case should have been referred to Government Internal Audit Agency for investigation by Counter Fraud and Investigation Team before any decision was made. 3) A message (or messages) to a claimant (or claimants) being ended with a ’x’ does not signify an inappropriate relationship. This should be regarded as a ‘slip of pen’ incident. Signing messages with a ‘x’ is a common practice throughout DWP. Julie acknowledges that it is likely that she has ended a message to a claimant with a ‘x’ in an absent-minded moment as she routinely ends messages to colleagues with a ‘x’. Including a ‘x’ in messages to colleagues does not imply that she has an inappropriate relationship with her colleagues, neither should it be the case for messages to claimants.” 7.74 On 18 April 2024 Kerrie Washington met Mike Shaw to provide him with the background to the case and sent him the relevant paperwork [pages 365 of the bundle]. After some further discussion as to whether there should be a meeting ahead of the appeal, on 20 April 2024, she provided Mike Shaw with the Decision Maker’s template alongside links to the relevant policy documents that she had provided to the claimant at the disciplinary meeting [pages 369-370 of the bundle]. 7.75 Kerrie Washington had another discussion with Mike Shaw on or around 16 May 2024 as he wanted to understand how payments from the Flexible Support Fund were approved and what the end-to-end process of making these payments was. She discussed this with him and then sent an email the following week, confirming this in writing [pages 384-386 of the bundle]. She also shared with Mike Shaw the information she had obtained from the claimant’s manager regarding the claimant’s homeworking, and that the claimant had raised no concerns with her manager regarding training needs or workload. She had no further involvement in the appeal process after this. On 15 April 2024, Dave Campbell sent the claimant’s Appeal to Mike Shaw via email [pages 363-364 of the bundle]. This appeal was technically out of time and Mike Shaw explained that this was because of the request to change the Appeal Manager. 7.76 There were three different parts of the claimant’s Appeal. These were: - Accessing systems outside of working hours: the claimant said she accessed the system outside of working hours to keep on top of her workload. She argued that this was common practice across all grades within the JobCentrePlus network, and the Acceptable Use Policy was outdated and no longer fit for purpose. - The process of decision making on authorising payments from the Flexible Support Fund: The claimant stated that she did not have sufficient training in relation to the Flexible Support Fund and the claimant’s applications were a 20 of 54 proposal to pay the award, however this was authorised by another individual before payment was made. - The suggested inappropriate relationship with Customer X: The claimant confirmed that she regularly ended messages with an ‘x’ and doing so did not signify an inappropriate relationship with the customer. She also argued that ending messages with an ‘x’ was common practice throughout the DWP. 7.77 Mike Shaw acknowledged the claimant’s appeal that same day and confirmed that he would be in touch regarding an appeal hearing date soon [page 374 of the bundle]. He then met with Kerrie Washington on 18 April 2024. As part of this discussion, he confirmed to Kerrie that he would like to speak with her and a HR representative to discuss the appeal and confirm the information that had already been gathered before he met with the claimant. 7.78 Kerrie Washington provided him with the relevant documents that related to the claimant’s disciplinary, including those documents involved within the initial investigation stage and the dismissal letter that had been sent to her [page 365 of the bundle]. He became aware that Kerrie had raised his request to speak to her and HR with HR following their call, and on 19 April 2024, the HR Business Partner for Universal Credit Merseyside District – Trudi Moody, confirmed this was not normal process [page 367 of the bundle]. 7.79 On 20 April 2024, Kerrie Washington provided Mike Shaw with the Decision Maker’s template alongside links to the relevant policy documents that she had provided to the claimant at the disciplinary meeting [pages 369-370 of the bundle]. The policy documents included a Journal Messaging Spotlight and Assessing Customer Experience Standards. Copies of these documents can be seen at pages 542-550 and 551-555 of the bundle. Kerrie also assisted in arranging a note taker to attend the Appeal Hearing [pages 368-369 of the bundle]. 7.80 Mike Shaw reviewed all of the documents that he had been provided with, trying to do so in accordance with the three distinct areas of appeal as set out above. These were working out of hours, making payments from the Flexible Support Fund and potentially unacceptable behaviour. 7.81 On 22 April 2024, Dave Campbell chased for an update on an Appeal Hearing date and it was agreed the Appeal Hearing would be held on 30 April 2024 [pages 371- 373 of the bundle], as it was. 7.82 The notes from this meeting are at pages 376-382 of the bundle. In attendance were Mike Shaw , the claimant , her Trade Union Representative Dave Campbell, and Caroline Todd who was taking a note. At the beginning of the meeting, Mike Shaw set out what he understood to be the three areas of the claimant’s appeal. 7.83 His general understanding was that DWP did not have a culture of working from home, but each business area takes a different approach with some offering some form of homeworking depending on the type of work they do. He wanted to provide the claimant with an opportunity to tell him about what she perceived to be the culture in Universal Credit. The claimant began talking about her experience at 21 of 54 DWP, how she considered herself to be ‘new’ in her role and her training was nonexistent [page 376 of the bundle]. He felt that as the claimant was a few years into the role she had been a DWP employee for a decent length of time, this made her a well-established member of staff, who should be aware of DWP policies and procedures alongside what is expected of her in undertaking their role. He asked the claimant if she was able to conduct her work on a hybrid basis, but she did not provide a direct answer to this question [page 377 of the bundle]. However, He claimant and her Trade Union Representative did later make reference to having knowledge that the claimant’s role was not a hybrid role, and that she was not expected to work from home, with the claimant confirming she worked from the office all of the time [page 374 of the bundle]. 7.84 He asked the claimant if she had spoken to her line manager about her work load, but she failed to provide a direct answer to his question. He asked at what point did she become so overwhelmed at work that she felt that she regularly had to work outside of her normal working hours, and she said this was around the end of 2021, when she was working at Duke St and that she was told to take her laptop home. He explained that his understanding was that laptops are permitted to be taken home in case the site is unexpectedly closed so that people can undertake some work in this instance. However this in itself did not mean that homeworking was permitted. He claimant explained that managers would take their laptops home and send Team messages at the weekend and the claimant’s Trade Union Representative confirmed that others working in the Department were working outside of normal working hours [page 375 of the bundle]. 7.85 The claimant’s Trade Union Representative confirmed that the claimant did not have enough time throughout the working day to complete her work, leading her to catch up on her work at home and the claimant confirmed this had been going on for a number of months, including her working at weekends and bank holidays. Mike Shaw asked the claimant directly whether she had made her line manager aware that she was unable to keep on top of her workload and was logging onto her work computer outside of working hours, however, she failed to answer the question [pages 377 and 378 of the bundle]. 7.86 When discussing the payments made from the Flexible Support Fund, The claimant said that she had virtually no training on this, and these were not queried by the individuals who authorised the payment. The claimant did not provide any reason as to why the payments were made incorrectly, but she did accept that some of the awards were not authorised for payment. The claimant’s view seemed to be that these were worthless because they were not authorised and should not be considered during this process. When discussing how payments are made, the claimant’s answers were vague and did not provide a full and accurate account of events of the general practice within her team. The claimant was, however, able to confirm his understanding of the process of these payments was correct, demonstrating that she did have knowledge of the process that should be followed, despite it being evidenced that she did not follow this process herself on a number of occasions [page 378 of the bundle]. 7.87 The meeting then went on to discuss the inappropriate correspondence with Customer X. The claimant said that she regularly ends messages with an ‘x’, and it 22 of 54 is not an affectionate sign off. She also said that she is unlikely to be able to stop a habit like this suddenly. 7.88 Mike Shaw concluded the meeting and confirmed that he would be in touch with his decision. Overall, he considered that the answers the claimant provided to his questions during the meeting were quite vague and did not necessarily focus on the points that impacted her dismissal, which she was aware of as result of being provided with all of the documents that formed part of the investigation [page 280 of the bundle]. he had been trying to get her to be more specific, but this was not successful. 7.89 Mike Shaw arranged a further discussion with Kerrie Washington on 16 May 2025 to gain a better understanding of the Flexible Support Fund process within Universal Credit [page 608 of the bundle]. She explained this to him during a telephone call, then followed it up with a written summary of the position on 22 May 2024 [pages 384-386 of the bundle]. 7.90 Mike Shaw also asked Kerrie Washington to explain to him what she found was Universal Credit’s approach to working from home / outside of normal working hours and what training needs / workload concerns the claimant had highlighted to her manager. Kerrie Washington informed him that Work Coaches do not have the flexibility to work from home, unless there were acceptable circumstances, such as the office having to close, and prior approval for homeworking had to be provided. She also informed him that no training needs or support requests had been made by the claimant to her manager or identified in their discussions, and no concerns had been raised regarding the claimant’s case load. 7.91 In relation to the claimant working outside of her normal hours of work [pages 101-227 of the bundle] and there being a culture of others doing it, Mike Shaw was satisfied that there was no culture of that kind of flexible working in place for Work Coaches following his conversation with Kerrie. In addition, the claimant had accepted that she had not communicated to her manager that she was working from home or sought her permission despite her allegedly needing to work a lot of additional hours just to keep on top of her work. He considered it odd that she had not raised this with her manager because it was not sustainable, she was working several additional hours per day based on the data provided, which raised serious questions as to how far behind she was on her work. She had accepted that she knew that she was not expected to work from home, so he did not think it was plausible that she was so far behind that she needed to work a large number of additional hours and she had not raised this with her manager. Her workload was never going to change if the issue was not raised. 7.92 The claimant had argued that managers had worked outside of normal working hours by sending updates and Teams messages to the team. He considered that working outside of office hours is different for someone in a managerial position and it did not surprise him that they had done this. In addition, sending updates or information to a team is different to accessing customer records outside of normal working hours. The hours in which the claimant was accessing the Universal Credit system were very concerning because they were at such unusual times, late at night or in the early hours of the morning, that he could not see how she could 23 of 54 compare this to a line manager who dropped someone a Teams message outside of their working hours. It was not comparable behaviour. He considered that unauthorised access of customer records and the browsing of customers records without authority and a legitimate business need is a breach of DWP’s policy on ‘How to: deal with security incidents and breaches of information security’ and is treated no less than serious or gross misconduct [pages 485- 509, in particular pages 488 and 490, of the bundle]. Paragraph 11 of this policy gives examples on how breaches will be treated, and he was satisfied that the claimant’s action fell within sections 1.1 and 1.2 of this. Whilst she had authorisation to access personal data or information as part of her normal duties, she had accessed multiple records, sometimes multiple times, without a legitimate business reason and appropriate authorisation by viewing customer data on her non-working days and at unusual hours of the morning. She also accessed Customer X’s records when she was not his designated Work Coach. He therefore did not consider the claimant’s explanation of her accessing these records at the times in question to be plausible. 7.93 In relation to the Flexible Support Fund issue, the claimant said that the signatures may have varied on some of the forms because the customer had a hand injury. As he was not a handwriting expert Mike Shaw could not determine if this was correct. Even if he had accepted that this was correct, there was no explanation from the claimant as to how Customer X had signed these documents when there was no record of him entering the Job Centre on the date of some of the signatures. This did not sit right with him, but he was also conscious that there was documentation missing, such as the missing paperwork that related to the mobile phone issue. He could clearly see the journal messages from the claimant to Customer X discussing the purchase of the mobile phone [pages 249-250 of the bundle] but there was no paper trail showing the actual purchase of the mobile phone. 7.94 The claimant had alleged that she had not be sufficiently trained but there was no evidence of this, nor was there evidence of her raising a training need with her manager about the Flexible Support Fund process. The claimant had also argued that some of the applications in question had been authorised by others. He accepted that this should not have happened and may have meant that the claimant was not solely to blame. He, however , was focused on the claimant’s behaviour and whether she could justify the payments made in line with DWP’s policy. Whilst he certainly had doubts over the claimant’s explanations for the Flexible Support Fund applications that were in question, he felt this allegation could not be substantiated so he gave her the benefit of the doubt in relation to this allegation. He probably would have overturned the decision to dismiss if this case was based on this allegation alone. 7.95 In relation to the inappropriate communications between the claimant and Customer X, he considered that this was the type of behaviour that he would not expect to see exhibited by a DWP Work Coach. He felt that both the ‘x’ signing off communications and the content of the messages themselves could be deemed as inappropriate. The inappropriate messages came from both the claimant and Customer X mutually, but it was the claimant who should have maintained professionalism in her role. During the appeal hearing, he considered that the claimant seemed purely focused on whether the use of an ‘x’ at the end of a 24 of 54 message was appropriate rather than the sexual innuendos referred to in the conversation. The claimant had argued that she regularly signed off her messages with an ‘x’, however there was no evidence of that and in fact her messages to Customer X only had an ‘x’ at the end of them during a concentrated period, when she engaged in the inappropriate messages with him. he also had concerns around whether the claimant was able to take feedback onboard and ensure something like this did not happen again as she told him that she would ‘try to take on board what she [Kerrie] said’ but how could she ‘all of a sudden stop doing something?’ [page 380 of the bundle]. 7.96 Mike Shaw spoke to HR regarding his findings, and they advised that given the seriousness of her actions in repeatedly accessing customer information outside of working hours and without business justification and the overall misconduct, that dismissal with immediate effect was justifiable. He therefore decided not to overturn Kerrie Washington’ s decision on appeal. He summarised his findings and emailed them to Kerrie on 23 May 2024 as a courtesy to let her know what his decision was. 7.97 He wrote to the claimant on 28 May 2024 to confirm that her appeal was not upheld [pages 391-394 of the bundle]. This letter was initially sent to an incorrect address in error, and Mike Shaw only became aware of this when the claimant’s Trade Union Representative chased him for an update on his decision around the middle of June 2024 [page 399-402 of the bundle]. In due course he therefore resent the letter via post to the claimant on 19 June 2024 [page 403 of the bundle]. 7.98 The claimant has disclosed the evidence at pages 46-59 of the bundle, which are emails are from leaders / managers. This (i.e as part of the Tribunal process) is the first time Mike Shaw has seen this evidence, it was not provided to him as part of the claimant’s appeal. However, even if he had seen this at the relevant time, it would not have changed his decision. All of these emails are from leaders / managers, and they are not related to cases of customers, do not require the individual to access customer records, and they are general team updates or correspondence with Trade Union Representatives. This is not comparable, in his view, to the claimant’s actions. The submissions (i) The claimant’s .[8]The parties made written submissions. For the claimant Mr Moore produced written Closing Submissions, which are undated, and are as follows.[9]The respondent’s decision-making process was unreasonable and procedurally flawed, and it was submitted that the claimant’s conduct, even if the Tribunal is satisfied that it amounted to misconduct, was not serious enough to amount to gross misconduct. The respondent was in error in categorising the claimant’s actions in this way which therefore rendered the decision to dismiss to be disproportionate and unfair.[10]The claimant submitted that these proceedings are particularly fact-sensitive and that the relevant legal provisions are entirely uncontroversial. The key legal issue is he band of reasonable responses test. 25 of 54[11]Turning to the allegations, there were three incidents that were taken forward as allegations against the claimant, and were ultimately relied on to dismiss her, as can be found on page 346. It was submitted that all three allegations as the Tribunal has heard were decided on very unfair grounds.[12]The allegations can be summarised as the following; i) “Allegation 1”- allegations arising from the Claimant’s misuse of the Flexible Support Fund (FSF). ii) “Allegation 2”- that the Claimant inappropriately worked from home. iii) “Allegation 3”- that the Claimant exchanged inappropriate messages with “Customer X”[13]The claimant denies that she committed misconduct to the extent that a dismissal may have been a warranted or reasonable sanction. Allegation 1 can be safely dismissed by the Tribunal as a potentially fair reason for dismissal. The Tribunal has heard evidence from the respondent’s own appeal manager, Mr Mike Shaw that this ground did not warrant a dismissal. The Tribunal can therefore be assured that the respondent was in serious error.[14]Allegation 2 relates to the claimant’s access of work files outside of working hours. The Tribunal has heard compelling evidence from the claimant that she was struggling to complete her workload during working hours. To manage this workload, the claimant began to make use of work equipment (that by the respondent’s own case was expected to be taken home by employees) to do work at her home outside of working hours. There is no evidence that the claimant made any improper entries when working outside of working hours. For this reason, the claimant’s conduct did not amount to gross misconduct, it is submitted that the claimant had a legitimate business reason to work from home as she was simply catching up on work. The evidence in the respondent’s own investigation report is clear- there was no misuse of flexi leave (page 99). It is also clear that the claimant did not make use of overtimeand as identified in the respondent’s own investigation report, there were no financial losses incurred by the respondent (page 72). With these circumstances in mind, no reasonable employer would have dismissed the claimant in these circumstances.[15]Allegation 3 relates to evidence of alleged inappropriate messages between the claimant and “Customer X”. The evidence shows that the claimant did not engage with sexual innuendo which was only initiated by Customer X. The respondent’s witnesses have told the Tribunal that the claimant should have reported this exchange- even if that is the case- such an infraction (i.e. a failure to report the conversation) does not warrant a dismissal.[16]Turning to the evidence, in more detail, Mr Moore continued. He referred to the fact that Kerrie Washington (the decision maker) told the Tribunal that she was advised to make her decision on the basis that all allegations where to be looked at together. It was submitted that even if this was the right approach, Ms Washington 26 of 54 crucially failed to consider that three relatively minor infractions, even when taken into a wholistic account, did not warrant an immediate dismissal.[17]He went on to say that it can only be described as a crucial factor in this case that prior to the incidents at the heart of these proceedings that the claimant did not have any other written warnings or active performance concerns. It can only be the case that the claimant was an employee in good standing prior to the initiation of the disciplinary process against her. It is equally notable that the claimant was not suspended at any stage- which, it is submitted- provides some indication that the claimant’s conduct was not originally viewed to be serious. It is certainly no criticism of Ms Washington that her first experience with the respondent’s dismissal process was the claimant’s case. However, the Tribunal is simply invited to find that she simply got her decision wrong because she reached a decision that would not have been reached by the comparative reasonable decision maker. An alternatively reasonable decision maker would not have dismissed the claimant and they would have at most, issued a final written warning. The claimant’s conduct simply does not fall within the band of[18]The Tribunal has heard the unequivocal evidence of Mr Shaw that there was a lack of evidence to substantiate the allegation that the claimant had misused the FSF process. To be clear- while the claimant does contest the evidence of Mr Shaw in general- the Tribunal is invited to find that Mr Shaw has taken a principled and reasonable view of this particular issue. It is simply the case that when examined to the reasonable standard, the allegation regarding the FSF process should not have played a role in the decision to dismiss the claimant.[19]He went on to make further submissions (paras. 16 to 19 of his Submissions) about this allegation. As, however, this is not a ground for the dismissal that has been maintained , it is not proposed to set out any further parts of Mr Moore’s submissions on this allegation. It is appreciated that the claimant’s criticisms of Kerrie Washington’s decision on this allegation are relied upon also to impugn her decision on the other two allegations, and the Tribunal will take them into account, but they are of limited relevance to the decision taken on the appeal , which remains the effective ground upon which the claimant was dismissed.[20]Turning to Allegation 2, Ms Washington in her decision to dismiss (on page 347 of the bundle) , took the view that the claimant’s repeated work from home and access of customer files could constitute potential harassment which fell under the aforementioned factors. Ms Washington was closely cross examined on this issue and her lack of reasonable belief that the claimant’s actions could be considered harassment, given her answers to this line of questioning which accepted the error of her rationale, this line of reasoning regarding the dismissal cannot stand as there were no reasonable grounds to hold that the claimant’s actions constituted harassment.[21]The respondent relies on Information Security Matrix on Page 490. However, the policies outlined in this document are only engaged if there is no legitimate business reason that has been advanced by the claimant. It is submitted that the claimant did advance a legitimate reason, which was to catch up on work, furthermore there is no 27 of 54 doubt that she was actually engaging in work related tasks while at home. That the respondent may have viewed that behaviour as “bizarre” (in the phrase used by Mr Shaw) is unreasonable. It is entirely clear that there were no fraudulent claims for overtime or flexi leave, in fact it is common cause between both parties that the claimant did not seek any additional renumeration for her work while at home. The claimant’s evidence is that she was struggling at work and simply needed additional time to work.[22]He continued that it must be closely considered that the claimant was a part time worker and was assigned a heavy case load, and she viewed the opportunity to work at home as an opportunity to catch-up. It is the respondent’s own policy for workers to take their electronic devices home. Therefore, it is simply logically incoherent that the respondent would view accessing these devices at home as gross misconduct.[23]Even if the Tribunal were to find that the information security matrix had been engaged , the respondent crucially failed to consider that a Final Written Warning may have been the appropriate sanction. It is further crucial context in these proceedings that the claimant did not have any other disciplinary issues, with this context in mind, a reasonable employer would not have dismissed her. Furthermore, even if the claimant’s explanation of her actions may not have been entirely satisfactory to the respondent, that it did not entitle it to make a decision to immediately dismiss.[24]During the course of cross examination, the claimant was directed to page 230 by the respondent’s counsel and questioned on its contents, especially on the implication that she was working from home for the benefit of Customer X. The Tribunal was asked to note that while the claimant did change Customer X’s assigned work coach to herself, the claimant realised her initial mistake and changed it back. The claimant has explained this change due to her return after a period of annual leave during which she was moved to a different customer group, a change of which she was not immediately aware. The Tribunal will also see further entries by the claimant including a time when the claimant added another work coach into the assigned role thereby giving clear support of her evidence that she was often tasked with assisting on this particular account.[25]Under this same line of questioning, the claimant was directed to page 317 of the bundle. The claimant explained that she accessed this document after a colleague asked for her assistance. When considered with the context and explanation regarding the entries on page 230, it can only be the case that the claimant was indeed carrying out a legitimate piece of work.[26]In general, it must be noted that the respondent is in serious error of finding the claimant’s conduct as one of gross misconduct. In particular, the respondent has not made out reasonable grounds for the dismissal. It is in breach of the expectation to provide a reason for the dismissal under s98(1)(a) of the Employment Rights Act 1996. The respondent has equally failed to adequately explain why the claimant’s conduct amounted to gross misconduct. 28 of 54[27]Turning to Allegation 3, Mr Moore submitted that the claimant certainly does not dispute that there were inappropriate messages on Customer X’s journal. The Tribunal was taken to the issues in question at pages 255 and 256 of the bundle. It is clear from this exchange that the only messages that may amount to innuendo were made by Customer X and the claimant did not engage in similar conduct. The Respondent has relied on the claimant signing off some messages with an “x” in an apparent show of affection. It is submitted that is an incredibly minor infraction that would not require a disciplinary process. The data entries are clear, any messages where the Claimant has signed off with an “x” are strictly limited to 31st Jan and 1st Feb. It is submitted that if this was indeed misconduct, it certainly does not meet the grounds of gross misconduct and would certainly not give rise to a fair summary dismissal.[28]If the Tribunal finds that the claimant’s conduct was contributory towards her dismissal (which is of course entirely denied), it is submitted that any infraction was minor in nature and would only attract a minimal deduction from any compensatory award.[29]The Submissions then move on to the dismissal process (paras. 32 to 40). It is submitted that this is certainly a case where the respondent has crucially failed to consider the context of the claimant’s alleged actions and its actual impact on its business. Furthermore, the respondent’s decision maker crucially failed to follow a fair and reasonable process during the course of her investigation.[30]In particular, as part of her decision-making process Kerrie Washington sent a message to the claimant’s line manager (page 322 of the bundle) . On this page, the claimant’s line manager, Lisa Cunliffe, makes it clear that she only became the claimant’s line manager in August 2023. This is of course significant, because the significant bulk of the issues material to these proceedings occurred prior to August 2023, and Ms Cunliffe could not have been aware of the claimant’s actions during that time. Indeed, Ms Cunliffe told Ms Washington that she was not aware of the claimant working from home or having capacity issues. While this may certainly provide a snapshot of the circumstances in between August 2023 to March 2024, it does not provide any assistance for the time before that.[31]The Tribunal has heard evidence that the claimant told her previous line manager about this arrangement , and that her line manager was aware of her work pattern. Furthermore, the Tribunal may note that during the disciplinary process (noted on page 317 of the bundle) that Kerrie Washington asked the claimant if her line manager performed observations of her work and provided reviews or feedback. The claimant noted that she did not , and given her comments about lack of training for her role, this should have been followed up on by Kerrie Washington with her enquiries with Ms Cunliffe, however it is entirely clear that it was not.[32]It is unexplained by Kerrie Washington why she did not seek to question the claimant’s previous line manager, an entirely relevant witness to the issues being investigated. However, it is submitted that the claimant has provided a more than reasonable explanation of her actions, the respondent has crucially failed to properly 29 of 54 investigate or consider it and has therefore followed a flawed process in breach of the ACAS code.[33]It is submitted that the essential issue to be considered by the Tribunal is whether a reasonable employer have arrived at a similar decision to dismiss the Claimant and whether the decision fell within the band of reasonable responses. The band of reasonable responses test as articulated in Iceland v Jones [1982] IRLR 439 makes it clear that a decision of one reasonable employer may be subject to a reasonable disagreement by another employer, however where this test is applied is when a reasonable employer would not come to the same decision. It is submitted that a reasonable employer would not have simply disagreed with the decision, they would not have considered it at all.[34]This submission is highlighted by the clear fact that the one of the allegations (Allegation 1) was questioned and set aside by the respondent’s own appeal manager during the appeal process. This alone provides a clear prima facie indication that the decision to dismiss (which by the respondent ‘s own case was a wholistic one) was not reasonable. Mr Shaw appears to have applied a high and fair standard during the appeal process and set aside Allegation 1 due to the clear lack of evidence to sustain this ground as part of the dismissal. It should have been apparent to Mr Shaw that taking the logical extension of his approach to Allegation 1, that the remaining allegations could not possibly stand.[35]However, it is submitted that Mr Shaw’s handling of the appeal was process tainted. He should not have contacted Ms Washington prior to meeting with the Claimant. As an experienced professional he simply should have known better. The Claimant submits that this contact with Ms Washinton tainted his view of the Claimant’s appeal and contributed towards his failure to reverse the decision to dismiss.[36]In conclusion , he submitted that it is clear that the dismissal of the claimant is not the action that would have been carried out by a reasonable employer. It can only be the case that the dismissal was an unfair one. Further, the Claimant’s actions did not reasonably contribute to her dismissal and as such no deduction to a compensatory award should be made. Finally, the Respondent has breached the ACAS Code of Practice owing to its flawed and unreasonable investigation therefore giving rise to a potential 25% uplift to any award that the Tribunal makes. The Submissions (ii) The respondent’s.[37]For the respondent, Mr Kinsey also prepared Written Submissions , dated 4 September 2025, as follows.[38]In the introduction , Mr Kinsey reminded the Tribunal that the respondent is a public body handling public data and money. It was submitted that due to the context of the respondent organisation, compliance with its policies is integral to maintain public confidence and that any breaches thereto should be treated very seriously. Moreover, there does not appear to be any dispute that the reason or principal reason 30 of 54 for the dismissal was for the potentially fair reason of conduct within the meaning of s.98(2) ERA 1996. The claimant was clearly dismissed for gross misconduct.[39]The issues for the ET to decide are:a. Applying a neutral burden, was the dismissal fair (s.98(4) ERA 1996)? The ET will assess in the circumstances (including the size and administrative resources of the R) and in accordance with equity and the merits of the case whether the R acted reasonably or unreasonably in treating conduct as a sufficient reason for dismissing the C.b. In addition, was the dismissal procedurally fair?c. If the answer is no to (a) or (b), should there be a reduction in damages accounting for Polkey?d. Furthermore, should there be a just and equitable reduction to damages to account for the C’s contribution towards her dismissal? He pointed out that the claimant has not brought a wrongful dismissal claim.[40]Turning to the facts , as the Tribunal had heard 2 days of oral evidence and made a note, it was not intended to repeat the facts in detail. The written and oral evidence will be referred to in submissions. Reference was made to the relevant policies and the relevant paragraphs therein as highlighted by Counsel. The following policies are of relevance:a. Standards of Behaviour Procedures on the Acceptable Use Policy which makes clear that employees should not access records of customers without authorisation and legitimate business need. Access without authorisation or legitimate business need can lead to dismissal [pages 475, 78 of the bundle ].b. Civil Service Code: employees are expected to carry out their role with integrity and honesty [page 426 of the bundle]c. ‘How to deal with security incidents and breaches of information security’ policy which details that unauthorised access and browsing of personal / customer records is a breach of policy and is treated as no less than serious or gross misconduct. A finding of gross misconduct is supportable where there is access to multiple customer records or access to the same record without a legitimate business reason or appropriate authorisation. Dismissal is an appropriate outcome if the manager has good reason to believe the actions to be suspicious or malicious and/or the employee provides no legitimate reason or reasonable justification for accessing records [pages 488, 7 – 11 of the bundle].d. Remote Working Security Policy: users must always seek line management approval prior to undertaking any type of remote working [page 522, 4.3 of thee. Journal Messaging Spotlight which covers the hours journals are to be responded within, the nature of the language to be used, and the deletion of messages [pages 543 – 548 of the bundle]. 31 of 54f. The “How to assess the levels of misconduct and to decide the penalty” document lists the type of conduct amounting to gross misconduct including repeated or significant breaches of the Civil Service Code or Standards of Behaviour Policy [page 617 of the bundle][41]Turning to the law, as the Tribunal will be very familiar with the law relating to unfair dismissal and the respondent intended only to highlight a selection of legal principles as an aide memoire. The Tribunal should undertake a 4-stage analysis:(i) did the respondent genuinely believe the claimant to be guilty of misconduct;(ii) did the respondent have reasonable grounds for that belief:(iii) was the belief based upon a reasonable investigation;(iv) was the dismissal and the investigation within the band of reasonable responses open to a reasonable employer (BHS v Burchell [1978] IRLR 379 and Iceland Frozen Foods v Jones [1982] IRLR 439). The respondent need not prove that the claimant was actually guilty of gross misconduct, and the assessment of the Tribunal should be limited to the 4 factors above.[42]The ET may only consider facts which were available to the R at the time of the decision to dismiss. This is significant when reflecting on the claimant’s email evidence as described below , and also some of the mitigation raised during cross-examination for the first time.[43]The Tribunal must avoid a substitution mindset when analysing the range of reasonable responses test. It must always have in mind the objective standards of the hypothetical reasonable employer. It should not conclude that the dismissal / the prior investigation was unreasonable, based upon how the Tribunal would have investigated the allegations or the decision the Tribunal would have adopted regarding the dismissal (Midland Bank plc v Madden [2000] IRLR 827).[44]Although the reason for the dismissal is not disputed and whilst a wrongful dismissal claim is not brought the respondent notes the following. In assessing the reason for the dismissal, the question for the Tribunal is whether the conduct in its totality amounted to a sufficient reason for dismissal not whether the individual acts of misconduct individually or cumulatively amounted to gross misconduct (Governing Body of Bearwood Humanities College v Hamm UKEAT/0379/13). Furthermore, gross misconduct is conduct that ‘so undermines the relationship of trust and confidence… that the [employer] should no longer be required to retain the [employee] in employment’ (Neary v Dean of Westminster [1999] IRLR 288 although cited by Mr Kinsey as “Dead of Westminster !). A respondent can act reasonably in dismissing an employee for gross misconduct even if individual acts do not amount to gross misconduct. In Mbubaegbu v Homerton University Hospital NHS Foundation Trust UKEAT/0218/17, the EAT upheld a tribunal's decision that the dismissal of a hospital consultant was fair despite the fact that no single act of gross misconduct had occurred. The NHS Trust had been entitled to treat a series of acts demonstrating a pattern of conduct to be of sufficient seriousness to undermine the relationship of trust and confidence between employer and employee without any single act amounting to[45]The context of a respondent’s organisation is critical assessing the reasonableness of the decision. It was pointed out in Hamilton v Argyll & Clyde Health Board [1993] IRLR 99 that what constitutes gross misconduct must be considered in relation to the particular employment and employee. The respondent’s 32 of 54 vast number of detailed policies regulating employee behaviour is reflective of the nature of its organisation.[46]Turning to substantive fairness, and the question of whether the respondent genuinely believed the claimant to be guilty of misconduct, he submitted that the oral and written evidence of Kerrie Washington and Mike Shaw clearly demonstrates that they both had a genuine belief that the c was guilty of gross misconduct. It would be very hard to conclude that they have acted without a genuine belief.[47]In relation to whether the respondent had reasonable grounds for that belief, he submitted that this is a case where there was significant documentary evidence supporting the respondent’s findings. The conduct was initially investigated by the Government Internal Audit Agency Counter Fraud Investigation Team which produced a wealth of evidence which forms the majority of the page count in the trial bundle. After an investigation and a meeting there was a case to answer [pages 68, and 6 of[48]Furthermore, the claimant ’s account was tested twice in two interviews [pages 265 and 298 of the bundle] and found wanting.[49]He cited the following evidence: Journal The investigation revealed evidence which supported the allegation of inappropriate journal messages [pages 240 – 259 of the bundle].a. The claimant admitted that her language (not just Customer X’s) was sexualised and suggestive on 2/3/23, in the disciplinary meeting [308].b. The claimant used the ‘X’ marker inappropriately and provided an incredible account that she used X’s out of habit (the Xs coincide with the flirtatious language at the end of January / start of February only) [page 256 of the bundle].c. She used unprofessional language and communicated (funded by taxpayers) about non work matters on the DWP system [page 256 of the bundle].d. She used text-speak and abbreviations [page 256 of the bundle].e. She wrote journals outside of office hours [page 242 of the bundle].f. She did not stop Customer X’s flirting or report his behaviour [page 256 of theg. She deleted journals without justification [page 197 of the bundle] in breach of policy [page 548 of the bundle].h. Without documenting why, she repeatedly harassed the customer to call her back eg: [page 246 of the bundle]. 33 of 54[50]This conduct clearly breached the Standard of Behaviour Procedures para 3 and 78, Civil Service Code (on integrity), Journal Spotlighting document as documented in the dismissal letter [page 346 of the bundle].[51]He continued: Work practices The claimant’s working hours were Tuesday- Friday 8am – 4pm. There is no evidence of a hybrid working arrangement or authorisation to work outside of those hours. There was a significant amount of evidence to prove that the claimant accessed and amended customer data/records outside of office hours at home, at highly irregular hours including late at night and early morning, and on none-working days [102+]. The claimant has had to accept she did in fact access DWP systems outside of work [JE, 4]. Examples include, but are certainly not limited to: pages 119, 142, 145, 158,102, 160, and 145 of the bundle. The access included excessive access eg: on 26/6/23 (non-working day) where the claimant accessed Customer X’s account 140 times on a single day and deleted 12 messages.[52]The claimant was not contracted to work at home at all and there was no special arrangement to permit such a practice. Nor was she permitted to work at home at the irregular hours or days on which she in fact did. The respondent’s case is that there was no business need for her to do so (how could there have been a business need to work at 3am in the morning?). Moreover, the claimant did not supply evidence or argue during the disciplinary investigation that she had been provided with authorisation to work on a hybrid basis.[53]The claimant was not Customer X’s Work Coach from 29/5/23, a fact she must have known given that she changed the status of the Work Coach on 28-29/5/23 [page 231 of the bundle]. Yet, she continued without authorisation to act as his Work Coach and viewed his profile 50+ times and his records 32 times until 15/9/23 [page 316 of the bundle]. The claimant conceded in oral evidence she did so in breach of the respondent’s policies. The Tribunal should be very hesitant to accept her written evidence that she simply did not know she was not the Work Coach for Customer X in light of the evidence at page 321, nor her new evidence (provided for the first time in cross-examination) that her Line Manager authorised her to work on Customer X’s case from May 2023 onwards.[54]As detailed in the decision letter [page 346 of the bundle] the conduct clearly breached the Remote Working Security Policy paragraph 4.3 as she had no authorisation to work from home, the Acceptable Use Policy, DWP Standards of Behaviour Procedures paragraph 78, and the Information Security Matrix 1.2.[55]The Tribunal should not be persuaded by any submissions that there were no reasonable grounds for the belief in gross misconduct on the basis that harassment was an element of the finding [page 347 of the bundle] and Kerrie Washington appeared to say she did not believe there was harassment during cross-examination. As she stated, her point was that the evidence was capable of amounting to harassment even though there was no complaint of harassment. Moreover, harassment was only one element of the many ways in which the conduct could be 34 of 54 described as gross-misconduct and not the most salient point [page 347 of the[56]Mr Kinsey continued to discuss the FSF Awards. This was, of course, a ground for dismissal that was not upheld by Mr Shaw on appeal. Nonethless, the respondent does rely upon the claimant’s evidence in response to this allegation as relevant generally to her credibility. The Tribunal does, for that limited purpose, therefore take these submissions into account, and hence recites them here. FSF awards Again, there was significant evidence of serious irregularities in respect of the FSF awards.a. Customer X’s signatures varied. For example, pages 78, 81, and 84 as against pages 87, 92, and 96 of the bundle. The claimant gave inconsistent accounts about who had signed the FSFs. It was not unreasonable to conclude that the claimant had signed at least some of the awards in breach of the respondent’s policy at the time.b. FSF awards were completed when Customer X was not in attendance at the jobcentre. Six examples were put in cross-examination including the signature dated 25/4/23 [ page 92 of the bundle] which does not have a corresponding attendance on the 25th [page 231 of the bundle ], or any date around then. There was no evidence (beyond speculation) of ad hoc appointments and/or any other jobcentre workers attending to the FSF documents. It was not unreasonable to conclude in light of all the evidence that the claimant had engaged in seriously irregular practice.c. There were significant irregularities in respect of many awards to Customer X as detailed in the decision letter [page 348 of the bundle]. The respondent highlights 3 examples below. i. Travel expenses [page 77 of the bundle ]. The claimant made an award for £38 when the amount required was only £23.75 [page 258 of the bundle ]. The FSF document records that ‘Receipts attached on FSF’. There are no receipts attached as confirmed by the claimant’s line manager. The reason there are no receipts is because Customer X told the claimant on 1/2/23 that the tickets had been ‘binned’ [page 257 of the bundle]. Instead of writing off the award the claimant on 2/2/23 granted the award, granted more than was requested, without receipts, and documented that there were receipts. This occurred in circumstances where the award was signed on a date where Customer X was not in attendance at the jobcentre and were there is suspicion that the claimant signed the awards using her pen. The claimant did not have any or any adequate explanation when it was put to her in the disciplinary hearing [page 303 of the bundle]. ii. Laptop [page 88 of thee bundle ]: an award of £199 was made on 8/4/23 for a laptop for a demolition SWAP course which had already taken place between 3/6/23 - 17/3/23 [pages 86 and 321 of the bundle].The claimant did not attend the office on 8/3/23 when the award was made [page 232 of the bundle]. The respondent confirmed that the course was only between 3/6/23 – 18/3/23 [page 321 of the 35 of 54 bundle]. The claimant did not have an answer in the disciplinary meeting to explain the irregularity [page 348 of the bundle] iii. There was no FSF document in respect of the mobile phone [page 233 of the bundle] purchase and the medical assessment to get the driver’s licence back [page 231 of the bundle]. Moreover, procedures were not followed at all when, purchasing, ordering and collecting the phone [page 352 of the bundle].d. The claimant was an experienced worker by 2023 (2-3 years in post) she must have completed without incident many FSF awards prior to working with Customer X. Her line manager confirmed that no issues had been raised about the claimant’s capability including a lack of training or competence regarding FSF awards [page 329 of the bundle]. Moreover, the claimant was not on a performance improvement plan [page 329 of the bundle] which might have excused the poor practices.e. Accordingly, the claimant breached the DWP Standards of Behaviour policy at paragraph 7, 59 and 78 [page 358 of the bundle].f. Whilst the appeal did not uphold this ground it is averred that applying the Burchell test nonetheless there was reasonable grounds for a finding gross misconduct. The Tribunal must assess all the evidence which was before the respondent in assessing whether there were reasonable grounds for a belief in gross misconduct (across the three allegations). Moreover, as Mike Shaw explained during the appeal, he compassionately applied a higher standard of proof (the criminal standard) [page 394 of the bundle , at item 2] despite being required to apply a lower standard of band of reasonableness [page 535 of the bundle]. Moreover, Mr Shaw did not go through each individual example of irregularity in the detailed way in which Washington did in her investigation.[57]Mr Kinsey caried on to address the issue of “Was the belief based upon a reasonable investigation?” He submitted that the investigation was reasonable considering the prima facie case against the claimant, the seriousness of the allegations and their potential impact upon the claimant . Plainly, the respondent took care and time to conduct an in-depth investigation into the issues. In particular;a. The conduct was initially investigated by the Government Internal Audit Agency Counter Fraud Investigation Team. After an investigation and a meeting with the claimant [page 265 of the bundle ] there was a case to answer [page 68 of the bundle , item, 6].b. Kerrie Washington undertook a very thorough investigation which involved conducting further investigations before the disciplinary meeting [291], and after the meeting [pages 322 & 329 of the bundle ]. She accepted and considered further evidence after the investigation meeting [page 605 of the bundle].c. Kerrie Washington held an extensive disciplinary meeting [page 298 of the bundle ].d. The Tribunal should not accept the claimant’s new evidence at trial that the email evidence [page 46 of the bundle ] was presented to Mr Shaw during the 36 of 54 appeal but ignored. The claimant said that for the first time at the trial and there is no reference to the evidence in the appeal meeting notes [page 376 of the bundle].e. The respondent conducted a thorough and disciplined investigation over a significant period. It fell within the band of reasonableness. Should it be alleged that the respondent could have investigated other matters, it avers it is well established that the test is one of reasonableness and a respondent need not overturn all stones during an investigation.[58]Turning next to the issue “Was the dismissal decision within the band of reasonable responses open to a reasonable employer?”, Mr Kinsey submitted as that the decision was well within the band of reasonable responses of a reasonable employer. He advanced the following in support:a. The respondent repeats that it is a public body funded by taxpayers. It is a significant data controller and handles public money. Inevitably, it must take misconduct very seriously.b. There was an overwhelming number of irregularities across, and within, the three core allegations of gross misconduct. Each allegation arguably could have been gross misconduct. However, it was the culmination of all the facts before the R that rendered the employment relationship untenable.c. It is denied that the conduct caused the respondent, or the public, no harm or loss. The claimant awarded Customer X more money for travel expenses than he needed in circumstances where he had pulled the application [pages 77 & 257 of the bundle]; the public paid for the claimant to engage in sexual flirtatious messaging with a customer [pages 255-256 of the bundle ]; Customer X (a member of the public) was plainly frustrated if not harassed by the claimant’s constant demands to call him without explanation resulting in him threatening to take the matter to her manager [page 247 of the bundle ]; as Mr Shaw said there was potential harm to other employees as there is a duty to protect one’s colleagues by reporting and exposing customers who could harm them; and, significant public money, time and resources have been spent in investigating the claimant’s conduct. Furthermore, as Mr Shaw pointed out in oral evidence there was significant harm to the claimant herself in that of her own volition she worked excessively outside of contracted hours.d. Kerrie Washington considered whether a final written warning was appropriate but on advice from HR concluded that taken together the only reasonable outcome was a summary dismissal. As described below the mitigation was considered but found wanting which permitted a summary dismissal over a final written warning.e. Even though this was the first offence(s), the summary dismissal was justified due to the nature of the significant number and seriousness of the allegations.f. The respondent’s policies permitted a summary dismissal. In particular: i. There was clear evidence of significant unauthorised access of customer records over a prolonged period. This included working from home at inexplicable hours and non-working days but also continuing to act as Customer X’s Work Coach from May 37 of 54 2023. The claimant was not merely performing administrative work at home as she tried to portray in answer to the Tribunal’s questions. As can be seen from the audit documents, she accessed multiple customer records, conducted changes to accounts, created journals, deleting journals, and more. The redactions (vertical black rectangles in the audit documents demonstrate she was reviewing customer data/records, as it is customer data that is redacted). ii. There was no business need for an employee to access customer records / work so excessively outside of her contracted hours in a hybrid capacity. As Kerrie Washington concluded it would have been a different story if the claimant was working around her contracted hours eg: 4-5pm or 7am-8am only but the claimant’s access was clearly far beyond mere catch up. Furthermore, even if the claimant has persuaded the Tribunal that she had a business need to work from home i.e to catch up on work (which is denied) there was no authorisation to work remotely nor at the levels or times at which she was working. iii. The actions of the claimant were deeply suspicious and did not permit reasonable explanation. As Kerrie Washington explained the times the claimant logged onto customer accounts was troubling as was the number of times she accessed accounts including without justification. There was evidence of excessive access to Customer X’s account (eg: 26/6/23) and inexplicable deletions of journal messaging). There was evidence of manipulation of FSF awards (signature variations, signatures dated when Customer X was not in attendance, missing documentation, excessive awards amounts without evidence etc). There was suspicion of the claimant engaging in a personal relationship with a customer. iv. There was evidence of procedures not being followed in respect of public money via the FSF awards [page 352 of the bundle].g. The claimant did not provide a reasonable justification/ legitimate reason for her actions. Taking them under the seven headings that the claimant had relied upon, Mr Kinsey submitted thus Overworked i. The respondent considered the claiman ’s explanation that she was overworked so had to work from home [page 418 of the bundle ]. Whilst the workload was noted as an explanation, Kerrie Washington considered it was only ‘slightly higher’ than that expected. The Tribunal was also asked to note Kerrie Washington’s explanation in cross-examination regarding the fact many of the claimant’s cases were not labour intensive. ii. Moreover, the line manager said she was unaware of any work pressures [page 329 of the bundle ] and Kerrie Washington explained there was no evidence from manager handovers of previous complaints of overworking. iii. There was also a practice whereby Work Coaches would assist their colleague’s workload which should have mitigated the claimant’s work pressures [page 329 of 38 of 54 iv. Furthermore, the respondent considered that whilst working immediately around contracted work hours might have a business justification there could be no justification for working in the middle of the night for example at 3am. The access was disproportionate and therefore could not be explained away by arguing the claimant was just catching up. v. Moreover, the respondent was aware that the claimant had not claimed overtime which is very odd if she was working so excessively outside of her contracted hours. vi. Moreover, the workload explanation did not accord with the claimant taking on extra work by continuing to act as the Work Coach for Customer X from May 2023 onwards. vii. Finally, during the appeal the claimant could not say that she had spoken to her line manager about relieving work pressures [page 393 of the bundle]. Unsupported viii. The claimant said that she was not supported by her line manager and that there were no 1-2-1s. The evidence , however, demonstrated that was not true [page 329 of the bundle]. Singled out ix. The claimant has not been unfairly signalled out as she argues [her witness statement, para. 10]. The claimant did not raise the issue of practices of other workers with Kerrie Washington. Furthermore, whilst the issue formed part of the appeal the evidence , paragraphs 46 onwards of her witness statement did not. The respondent argues that only evidence that was before the decision makers can be included in the Tribunal’s assessment of the fairness of the dismissal. Regardless, for the reasons stated by Mr Shaw [para. 26 of his witness statement] and Kerrie Washington even if they had the evidence before them, it would not have changed their decision. Furthermore, the claimant has not provided evidence of colleagues working so excessively outside of normal contracted hours. Training x. The respondent considered the mitigation in respect of a lack of training. However, the claimant had been in post around 2-3 years at the time of the conduct and therefore must be classed as an experienced worker as discussed on appeal [page 376 of the bundle]. xi. Kerrie Washington was told by her line manager that the claimant had never raised any capability issues with her despite 1-2-1s having taken place and no specific concerns around FSF awards [page 329 of the bundle]. Indeed, the claimant must have had training in FSF awards to engage in the practice, and she conceded she had some training under cross-examination. xii. There is documentary evidence of training in January 2023 [page 320 of the bundle]. The claimant conceded that that training would have included unauthorised access to data and accessing data only within legitimate reasons. 39 of 54 xiii. Furthermore, the claimant conceded in her first interview that she knew data should not be accessed without authorisation or business need and that she should avoid putting herself in positions where private and public life mix [page 266 of the Lack of knowledge xiv. The mitigation in respect of the lack of knowledge of not being permitted to access customer records outside the office was considered [page 351 of the bundle]. It was also considered in the appeal where Mr Shaw discussed in detail that the Work Coach role was not a hybrid role and was 100% office based [page 377 of the bundle ]. It is averred, that the claimant must have known she was not permitted to work from home as it was simply not done as part of her role. Merely, being able to take workplace equipment home (for business continuity reasons) was not an excuse to work from home. Simply claiming ignorance is not justifiable given the levels of access to records over time. Journal messages xv. The claimant now attempts to limit her involvement in the journal messages by blaming Customer X for instigating the flirtation. However, the claimant engaged in the communication and said sexually suggesting things [page 255 of the bundle], she did not stop the Customer or report him even though she admitted (under cross-examination) that she could have done. Moreover, the claimant’s mitigation ignores the fact the journal contains a significant number of conduct issues. Finally, it is simply not true as alleged in the ET1 that the X marker was used habitually as a sign off. Clearly, it coincided with the flirtatious comments as Mr Shaw understood [page 393 of the bundle]. Responsibility for FSF awards xvi. The respondent considered the claimant’s mitigation in respect of the FSF awards and overturned the decision. However, the Tribunal might note that the claimant at trial (and in her ET1) tried to evade responsibility by arguing others were involved in signing off the FSF awards. However, even if that is true, the claimant must nonetheless bear significant responsibility because she started the process.[59]In summary, considering the totality of the claimant’s conduct across the three allegations (which of themselves contain a vast number of separate conduct issues) and the poor mitigation the employment relationship was no longer sustainable.[60]Mr Kinsey then turned to Procedural Fairness . He submitted that the dismissal was procedurally fair because:a. The claimant knew the case against her [pages 275 and 280 of the bundle].b. The claimant was informed about the risk of dismissal page 275 of the bundle].c. The allegations were investigated as described above. 40 of 54d. The claimant was given the opportunity to make representations at two meetings after the allegations were put to her [pages 256 and 298 of the bundle].e. The decision was provided to the claimant in writing [page 346 of the bundle].f. The claimant was permitted a right of appeal [page 354 of the bundle ] which she did in fact undertake.[61]He submitted that the claimant ’s allegations of procedural unfairness lack merit because:a. The claimant was in fact provided with all the evidence as detailed above, a fact she conceded under cross-examination.b. There is no evidence of undue influence between Kerrie Washington and Mike Shaw, which is entirely speculative.c. Even though the FSF allegation was overturned, the severity and nature of the other two allegations meant it was still reasonable and fair to dismiss the claimant . The fact that Mr Shaw was willing to overturn the appeal on the FSF allegation demonstrates that the R carefully and reasonably applied a fair procedure balanced decision-making process. Moreover, as described above, he did so by applying a higher standard of proof than that which was required.d. There is no evidence that the claimant was on a stress reduction plan at the time of the alleged conduct. The claimant did not put in cross-examination that any mental health issues should have been factored into the decision-making process. That was probably because the stress reaction was a reaction to the disciplinary proceedings.e. The respondent repeats its submissions regarding the alleged inconsistent treatment of which there was none. 62. in the alternative, he submitted, even if there were procedural issues (which is not admitted) they should not be viewed in a vacuum but instead in the context of all the facts and circumstances (Sharkey v Lloyds Bank [2015] UKEAT/0005/15). The claimant has not been unduly prejudiced by any procedural slips (should they be proven).[63]Turning to credibility and reliability, the respondent submitted that the Tribunal should treat the claimant’s evidence with a significant degree of caution if not (in places) deep suspicion. It argues that the claimant’s evidence has been proven to be unreliable. Therefore, her mitigation should be taken with a large chunk of salt. In particular, Mr Kinsey cited these selected examples of clear inconsistent evidence relating to material issues:a. The claimant said in her witness statement [para. 37] that she had not had all the evidence against her. She had to concede that her witness statement was untrue after being shown the document at page 280 of the bundle.b. The claimant told the first investigator that more than likely she signed some of the FSF awards on behalf of Customer X [page 269 of the bundle]. She told Kerrie 41 of 54 Washington that 100% she had not signed the signature and blamed a military injury for any variation in the signatures. On balance, given this inconsistency and the visual variation in the signatures and issue with Customer X’s attendance dates, it is more likely than not that she did sign some of the FSF awards for him and subsequently lied about doing so. Furthermore, it is noted that the claimant has not explained how a military hand injury (of which there is no documentary evidence) can explain why a neat signature would change in the way it did across the documents (i.e from neatly using an initial to a full Christian name or vice versa).c. The claimant gave an incredible account that she only used an ‘X’ as a marker in the journal out of habit. The evidence demonstrates she only did so when engaging in flirtatious messages. Moreover, she pulled the wool over her eyes (if not the Tribunal’s too) when saying all the sexualised journal messaging was Customer’s X rather than admitting she engaged in a two-way conversation.d. The claimant said during oral evidence for the first time that she had been given authorisation to work remotely from her previous line manager. Her explanation that it was not appropriate to put in her witness statement (or mention it during the disciplinary hearings) cannot be true, for the obvious reason that if true she would have said it to justify her actions.e. The claimant said for the first time in oral evidence that there was a further course which justified the laptop payment in April 2023 after the demolition course of March 2023. This was entirely inconsistent with her witness statement [para. 23] and the disciplinary hearing notes.f. The claimant said she had never had a 1-2-1 with her manager [ para. 12 of her statement], but the line manager was clear that they had had 1-2-1s [page 329 ofg. At one point in cross-examination, the claimant said she had no training at all. Then she back - tracked and said she had some training. To waiver so significantly on a material mitigation point demonstrates the claimant ’s unreliability.h. Regarding the appeal hearing the c said for the first time that her email documentation at pages 46 onwards was before Michael Shaw which he denied. Furthermore, the claimant said for the first time that Mr Shaw shook his head and was dismissive towards her in the appeal.i. The claimant said in oral evidence that the allegation that she had continued to work as a work coach without authorisation from May 2023 onwards had not been put in the disciplinary process. It, of course, had been [page 317 of the bundle].j. The explanation for why she continued to work as a Customer X’s Work Coach after 29/5/23 lacks all credibility. The claimant knew she was no longer authorised to be the Work Coach because she changed the name of the Work Coach to herself on 28/5/23 and then back to Paula Lackey on 29/5/23 [page 230 of the bundle].k. In justification for why she continued to work as the Customer X’s Work Coach and after admitting she had no authorisation to do so from May-August, the c said for the first time in oral evidence that sometimes Paula Lackey would ask the 42 of 54 claimant to help her with Customer X. It was not the explanation in her witness statement , at para. 15.l. The claimant did not have any mitigation for many of the specific allegations. To list just a selection: she had no answer for why she deleted 12 messages in breach of policy on 26/6/23; she could not answer why she repeatedly asked Customer X to call her [page 246 of the bundle]; she had no recollection as to how the FSF applications for the mobile phone and driver’s licence were missing; and, the claimant cannot explain beyond speculation how Customer X signed the FSFs without being in attendance.m. The fact the claimant did not claim overtime for the enormous amount of extra days and weeks she was working outside of hours is highly suspicious.n. The claimant said for the first time in oral evidence that she had been authorised by her manager to defer an advanced payment [page 231 of the bundle] which was not the explanation in the disciplinary hearing [page 311 of the bundle].o. The case inherently raises significant suspicion about the credibility of the claimant To take one example, (beyond speculation) on the evidence how did Customer X sign the awards at pages 80], 86, 89, 92 , and 95 of the bundle when there is no record of him attending the jobcentre [pages 234, 232, 231 of the bundle]?p. The Tribunal might be careful in placing too much weight on a submission that due to the passage of time there are bound to be errors in her evidence. The initial investigations were very soon after the alleged conduct and as the meeting notes show the claimant did not have an answer to many allegations and/or provided inconsistent accounts. Moreover, the claimant gave inconsistent evidence under cross-examination on material matters she would have been expected to know clearly eg: that she had been authorised to work at home.[64]In conclusion of this section of the Submissions, Mr Kinsey accepted that at times during the cross-examination, it was only human to have sympathy with the claimant distress and character. However, the respondent submits that unfortunately the reason for the distress was that she found herself in a significant trouble of her own making.[65]Turning finally to the issues of Polkey / Contribution, Mr Kinsey’s submissions are these.[66]Starting with Polkey , if the dismissal was unfair (which is denied), the Tribunal should reduce the amount of compensation (basic and compensatory) to reflect the real chance that there would have been a fair dismissal (contemporaneously) if the dismissal had been fair. The respondent avers that that due to the severity of the conduct any award should be reduced by 100% to reflect the fact the claimant would likely have been dismissed regardless.[67]As for contribution, if the dismissal was unfair (which is denied), it must be the case that the claimant is the author of her own misfortune. She caused or contributed to her dismissal by her culpable and blameworthy behaviour. Therefore, her damages should be reduced by a just and equitable amount. The respondent avers that due to 43 of 54 the severity of the conduct any award (basic and compensatory) should be reduced by 100%.[68]A selection of conduct issues are raised below and are not exhaustive, namely:a. The claimant engaged in the journal messages with Customer X and was complicit with his behaviour. Moreover, she did not stop the messages even though as she conceded she had the opportunity to cease communication. She did this even though she knew she should not put herself in a position where private interests conflict with her professional role [page 266 of the bundle].b. The claimant made serious and basic errors with the FSF award process. The Travel expenses award [page 77 of the bundle] as identified above cannot be excused by a lack of training.c. The claimant did not make a reasonable effort to request further training or a reduction in workload.d. The claimant took her work home and worked excessively outside her contracted hours without authorisation of her own volition. Discussion and findings[69]Those then were the submissions. As for the law to be applied , the relevant statutory provisions are set out in the Annexe to this judgment, and are not contentious.[70]In terms of caselaw, reference has been made to the leading case of British Home Stores v Burchell [1978] IRLR 379 which sets out guidelines for the approach of the Tribunal in cases of misconduct:a. the employer must have an honest belief at the time of dismissal that there was a fair reason to dismiss;b. the employer must have reasonable grounds for holding that belief; andc. the employer’s reasonable grounds must be based on a reasonable investigation.[71]Turning to the sanction of dismissal, and the Tribunal’s approach in general, the Tribunal bears in mind the guidance in Iceland Frozen Foods Ltd v Jones 1983 ICR 17 , cited by Mr Kinsey, where the EAT said : ‘We consider that the authorities establish that in law the correct approach for the… tribunal to adopt in answering the question posed by [S.98(4)] is as follows:(1) the starting point should always be the words of s.98(4) themselves;(2) in applying the section [a] tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the… tribunal) consider the dismissal to be fair; 44 of 54(3) in judging the reasonableness of the employer’s conduct [a] tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;(4) in many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another; 5) the function of the… tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.’ The Tribunal’s must therefore, be careful to avoid a “substitution mindset” , at all stages, as directed by, for instance, the EAT judgment in Midland Bank plc v Madden [2000] IRLR 827 .[72]The Tribunal’s first task, of course, is to establish whether the respondent, upon whom the burden lies, has shown that the claimant was dismissed for a potentially fair reason. The reason in the case is conduct, and there has been no dispute but that this was the reason for the dismissal, so the respondent satisfies that initial burden.[73]Rather, as Mr Moore submits in para. 5 of his Submissions, the key legal issue is the band of reasonable responses test, and it is to that issue that the Tribunal now turns.[74]Whilst the Tribunal has considered a lot of evidence, and the facts are quite extensive, standing back the case can be viewed in overall terms , as follows. The claimant was employed, in a public facing and responsible role, which involved her in making decisions which could affect how public monies were spent, and involved direct interaction with clients, whose personal data was accessible to her, and with whom a certain level of contact would be required. Her employment was subject to a number of Policies and Standards , of which she either was aware, or could reasonable be expected by the respondent to be aware. Her work was accordingly, quite heavily regulated. She had been in this role for some 3 years, and had not identified any issues with her training or workload.[75]Against this background, on a purely routine audit, issues with her working practices were identified, which led to further investigation, which revealed more issues.[76]The respondent duly investigated all these issues, which resulted in the claimant being disciplined , and ultimately being dismissed, for three different types of alleged misconduct. They were: Incident 1 – frequent financial support of Flexible Support Funds awards to customer X where there is no clear indication that the customer requested specific support and that signatures vary on each of the award documentation. 45 of 54 Incident 2 - that between January 2023 and September 2023 the claimant accessed claimants and customer X records outside of her contracted working hours and made amendments to claimant’s/customer X accounts/claims whilst on leave and nonworking days. Incident 3 - on 2 February 2023 there is evidence of inappropriate messages between the claimant and Customer X.[77]These matters were investigated, and an investigation report was prepared, and provided to the claimant. Kerrie Washington ultimately determined, after a disciplinary hearing with the claimant on 12 January 2024, at which the claimant was represented by a trade union official, that the claimant had committed all three of the alleged acts of misconduct, and dismissed her without notice for that conduct, which was classed as[78]The claimant appealed her dismissal, and that appeal was heard by Mike Shaw, on 30 April 2024, the claimant again being represented by a trade union representative. He rejected the appeal, by letter of 28 May 2024, but in doing so, he expressly discounted what had been Allegation or Incident 1 – the claimant’s dealings with Customer X’s FSF applications and payments – now Issue 2 in his outcome letter (page 394 of the bundle) , but upheld the decision to dismiss on the basis of the other two grounds upon which Kerrie Washington had dismissed the claimant, namely accessing claimants’ and Customer X’s records outside of her contracted working hours , making amendments to claimants’/customer X’s accounts/claims whilst on leave and non-working days, and inappropriate messages between the claimant and Customer X.[79]It is this aspect of the dismissal , the decision on the appeal, which has caused the Tribunal to examine most closely whether the decision to dismiss fell within the band of reasonable responses.[80]Had Mike Shaw also upheld the FSF grounds , to call them that, the Tribunal would have had no hesitation in finding that the dismissal was fair, as these were clearly the most serious allegations , involving serious breaches of procedures designed to safeguard public funds, and highly questionable payments to Customer X of sums that exceeded what he had applied for, and the claimant’s personal involvement of the procurement for him of equipment. The Tribunal suspects that had that conduct remained part of the basis for the claimant’s dismissal, this claim would probably not even have been brought.[81]That, however, is not what happened, Mike Shaw did not uphold the dismissal of the claimant on these grounds, which leaves the dismissal resting upon the other two grounds.[82]The claimant , in these circumstances, invites the Tribunal to find that the removal of the FSF grounds for dismissal leaves the respondent in a much weaker position, as the other two grounds, the inappropriate working hours and practices, and the inappropriate communications with Customer X, are considerably less serious, and should not have led to the claimant’s dismissal. 46 of 54[83]Against that, the respondent submits that the other two grounds were themselves serious enough to constitute conduct which justified dismissal.[84]The Tribunal can see the force in both arguments, and is very alive to its duty to avoid the substitution mindset. Whilst appreciating that there must have been a risk that the FSF grounds, though discounted in the findings on the appeal, may have continued to have a (perhaps unconscious) influence upon the decision of Mike Shaw on appeal, the Tribunal considers that its task is simply to ask whether dismissal for the other two types of conduct found by Kerrie Washington , and upheld by Mike Shaw, fell within the band of reasonable responses.[85]Whilst not of the same magnitude as the FSF grounds, the Tribunal considers that the respondent was nonetheless entitled to find that these two other types of conduct were in themselves serious. The Tribunal’s reasons for that conclusion are as follows.[86]In relation to the claimant accessing claimants’ and customer X’s records outside of her contracted working hours, and making amendments to claimants’/customer X’s accounts/claims whilst on leave and non-working days, this was found (and is not challenged) to have taken place between January 2023 and September 2023. It was, in short, persistent and extensive. True it is that this behaviour only came to light as a result of the investigation into the FSF issues, and it may be said to be “victimless”, in that no customers would probably have been aware of it. It was, however, in several ways, conduct which breached the respondent’s Policies, particularly in relation to data protection. The Tribunal, as was the respondent, was struck by the claimant’s apparent lack of appreciation of the seriousness of her breaching these data protection policies and procedures, which she appeared to regard as unimportant, because she felt entitled to carry out these tasks at the , frankly , bizarre times of the day and night that she was doing so, because she was behind in her work. This fact, of course, the respondent found, she never brought to the attention of management , and the Tribunal , and the respondent, would be entitled to wonder if, had these matters not been actually brought to light, she would not have continued to act in this way.[87]To the extent that the claimant sought to claim that other persons took their laptops home with them, and actually used them to work from home, the respondent did not consider , and was entitled so not to consider, that the claimant was comparing like with like, as the persons she , or her trade union rep., identified as comparators were not using their laptops for anything like the same purposes as the claimant was using hers, they were simply sending out , or forwarding messages to multiple recipients. They were not accessing customer data.[88]In relation to the other allegations, those of inappropriate messages between the claimant and Customer X, again, the claimant did not challenge the findings (which are clearly established by the documents) of Kerrie Washington , upheld by Mike Shaw. The Tribunal considers these are the more serious of the two types of conduct on her part for which her dismissal was upheld. That is because, unlike the first type, which did not impact upon, and were unlikely even to come to the attention of, customers, this type did involve her interaction with a customer. In engaging in this conduct, the Tribunal considers , as did the respondent , the claimant compromised her position as a public servant, and crossed the boundaries which the respondent reasonably expected her to observe when dealing with its customers. As can be seen from the 47 of 54 subsequent dealings between the claimant and customer X, issues arose in their relationship, to the extent that he threatened to complain about her. The Tribunal considers that the claimant’s dealings in relation to the FSF claims do have some relevance to these allegations, as they are the context in which she was having her dealings with customer X. These dealings highlighted how influential her position could be in terms of financial benefit to customer X. The Tribunal considers that the respondent was entitled to, and did, look and the whole tenor of her communications and interactions with customer X , including her continued involvement with him after she had ceased to be his Work Coach, and her subsequent re-instatement into that role by herself, when considering the issues of her communications with him over the whole of the period in question.[89]The Tribunal therefore accepts that the respondent did, as was entitled to, find that all of this conduct, taken in the round, was sufficiently serious to merit consideration of dismissal.[90]There remains , however, one other ground of unfairness relied upon by the claimant , which is partly procedural, but may impact upon the fairness of the respondent’s finding in respect of one, at least, of the respondent’s grounds for dismissal. That is the contention that the respondent, in the person of Kerrie Washington, failed to carry out a reasonable investigation into the allegations that the claimant was accessing the personal data of customers at inappropriate , and unauthorised times, particularly on non – working days, because no enquires were made of her previous line manager by Kerrie Washington to see if she was aware that the claimant was working from home on her non – working days because she was struggling to keep up with her workload.[91]Lisa Cunliffe, the point is validly made, had only managed the claimant from August 2023, and the allegations of the claimant carrying out such activities go back to January 2023.[92]Kerrie Washington did not, she accepted, make any enquiries of the claimant’s previous line manager about her knowledge of the claimant working in this way. Lisa Cunliffe, her current manager, had not authorised her to do so, and was unaware of any prior arrangement or knowledge on the part of any previous manager that she was doing this.[93]Did that failure to make any further enquiry render the investigation unreasonable? The obligation to carry out a reasonable investigation is precisely that, to carry put a reasonable investigation, not one which leaves no stone unturned (see Shrestha v Genesis Housing Association Ltd [2015] IRLR 399 .)[94]A number of points arise. Firstly, in the claimant’s first investigation meeting with Elaine Rushton on 10 October 2023 (pages 264 to 271 of the bundle) , in which she was expressly told the range of dates that were under consideration, whilst the claimant was asked about whether she had ever spoken to her previous manager about training, she said she had, but nothing had been put in place (pages 266 and 267 of the bundle). She went on to say that she had spoken to her about struggling to complete appointments with clients within 10 minutes, and how she had logged on at weekends to clear her emails and journal messages. She went on to say (page 267 of the bundle) how no one had ever said that she “could not do that”, but she had carried 48 of 54 on doing it “whether it be right or wrong” because she had never known any different. That is, of course, not the same thing as saying that her previous line manager was aware of the claimant working in this manner, and had expressly approved it. In Elaine Rushton’s Summary (page 270 of the bundle) she summarised this response, and did not make any reference to the claimant having suggested that her previous line manager was aware of, and had actually authorised , her working in this way.[95]That Report was available to the claimant and her union representative, and neither of them subsequently raised any issue that the claimant had made such claims in the investigation interview, but they had not been noted.[96]Turning then to the meeting that the claimant had with Kerrie Washington on 12 January 2024, the claimant was challenged about the high volume of occasions when she logged onto her computer and accessed the Universal Credit system outside of her working hours. She explained why she did this to Kerrie Washington (page 311 of the bundle), but made no mention of her previous manager being aware of , or approving , this practice. Kerrie Washington specifically took the claimant through instances of where she had logged on and accessed clients’ data in the period before Lisa Cunliffe became her line manager. At no time did the claimant claim that her previous line manager knew of, and had approved , these working practices.[97]Even when , in answer to Kerrie Washington’s invitation, after the meeting had ended on 12 January 2024, to the claimant and her union representative to supply any more information that they wanted to , Geoff Burns wrote on 18 January 2024 to Kerrie Washington (pages 605 to 606 of the bundle) specifically addressing the issue of the claimant’s accessing of the system out of hours, or on non – working days, was any mention made of the claimant’s previous line manager having knowledge of, and having approved the claimant’s practices.[98]Further, in the grounds of appeal letter of 15 April 2024 (pages 363 to 364 of the bundle) , drafted by the claimant’s trade union representative , no criticism is made of the investigation, nor is it suggested that the claimant’s unacceptable working practices were known of, and approved by, her previous line manager. The basis of the appeal against this finding was that HEOs and others were doing similar things, so that Acceptable Use Policy was now outdated and no longer fit for purpose.[99]Thus, as can be seen, the issue of whether the claimant’s previous line manager knew about her working practices, and had even approved them, was not raised in the course of the initial investigation, the disciplinary meeting and its aftermath, nor in the grounds of appeal. It was not, therefore, an obvious line of enquiry, and the Tribunal sees no unreasonable failure of the respondent’s investigation in failing to make any such enquiry of the claimant’s previous line manager as the claimant now, for the first time, suggests should have been made. Finally, and terminally for this argument, the claimant does not say anywhere in her witness statement that she was working in this manner with the knowledge and (tacit or express) consent of her previous line manager.[100]The approach to be taken to the issue of whether the respondent has undertaken a reasonable investigation was considered by the Court of Appeal in Shrestha v Genesis Housing Association Ltd [2015] IRLR 399. Whilst the factual context was very different, the claimed that the respondent had breached the reasonable 49 of 54 investigation rules in Burchell. The Employment Tribunal disagreed, holding that the employer's consideration of the relevant points in the round had been reasonable. The EAT rejected the claimant's appeal and the Court of Appeal agreed. It was accepted that Burchell does indeed apply to investigating defences raised by an employee, but not necessarily individually. In a particularly useful dictum at [23], Richards LJ put it thus: ''To say that each line of defence must be investigated unless it is manifestly false or unarguable is to adopt too narrow an approach and to add an unwarranted gloss to the Burchell test. The investigation should be looked at as a whole when assessing the question of reasonableness. As part of the process of investigation, the employer must of course 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. Here, of course, the claimant had not raised any specific defence that her previous line manager know of, and had permitted these working practices.[101]Finally, and for completeness, although not expressly raised by Mr Moore as an issue that the Tribunal should consider, and bearing in mind that the claimant had no previous disciplinary record, (a point he did make), the Tribunal does take into account the principle that disciplinary procedures are intended to be corrective and not penal. To that extent, therefore, it is legitimate when approaching the sanction of dismissal, to consider whether it would have been reasonable to impose some lesser, corrective penalty, so that dismissal was outside the range of reasonable responses .[102]The Tribunal does not so find. Firstly, both of these types of conduct for which the claimant’s dismissal was upheld were not isolated incidents. The first group, the inappropriate working hours and practices, went on for months. The second, the claimant’s communication with Customer X similarly was not “one off”. True it is that the “X” being used in messages was short lived, but the tenor of the totality of these communications and the claimant’s involvement in the FSF applications , again relevant to consider in this context, demonstrate that this was not a minor or fleeting error of judgment.[103]Whether correction of this conduct was possible or likely by the imposition of a lesser penalty the Tribunal seriously doubts. The respondent was satisfied, and reasonably so, that the claimant was aware of all the relevant policies, and had adequate training and awareness of the standards expected of her. That she did not, on her own admission, take to management any of the issues or concerns as to her workload that she claims were the cause of her inappropriate working practices, undermines any confidence that the claimant would not repeat such conduct in future. The claimant also declined (in November 2023) any further assistance in the form of a further OHS report, and she did not complete the Stress Risk Assessment that was provided to her at that time. Further, the respondent was entitled to consider , as did the Tribunal, that her lack of awareness or appreciation of the seriousness of even the lesser forms of conduct that led to her dismissal did not instil any confidence that the claimant would not fall into such bad ways again in the future. Her response to the FSF issues similarly demonstrated a lack of awareness and insight which the Tribunal considers the respondent was also entitled to take into account in assessing whether the required trust and confidence could ever be rebuilt. 50 of 54[104]The Tribunal’s conclusion therefore is that, notwithstanding the decision of Mike Shaw on appeal that the conduct of the claimant in relation to the FSF applications was not to be taken into account, the respondent was, in all the circumstances, entitled to dismiss the claimant for the other forms of misconduct which Kerrie Washington had found she had committed, and which Mike Shaw upheld on the appeal.[105]As an aside, the Tribunal does not consider it relevant that Mike Shaw’s decision was taken by him applying a higher (i.e the criminal) burden of proof, when he was not required to do so. If a respondent does not, on appeal, uphold a ground for dismissal previously relied upon by the dismissing officer because a higher standard of proof has then been applied, then that ground has ceased to be one of the reasons for the dismissal. The Tribunal cannot , certainly for the purposes of deciding whether the dismissal was fair, engage in a putative exercise of what the decision would have been had a lower burden of proof been applied.[106]That leaves, however, one remaining matter, and that is the procedural issue relied upon by the claimant as rendering the dismissal unfair, namely the contact between Mike Shaw and Kerrie Washington, which , it was submitted rendered his handling of the appeal process tainted. It is said that he should not have contacted Kerrie Washington prior to meeting with the claimant. He should have known better, and the claimant submits that this contact with Ms Washinton tainted his view of the appeal and contributed towards his failure to reverse the decision to dismiss.[107]Neither the ACAS Code of Practice on Disciplinary and Grievance Procedures (2015), nor the ACAS Guide: Discipline and Grievances at Work (2020) provide that an appeals officer should have no contact or communication with the dismissing officer. The requirement is merely that they be independent of, and uninvolved in, the original decision under appeal.[108]Further, the respondent’s own procedure provides as follows [page 449 of the bundle]: Identifying an Appeal Manager 9.2. The role of an Appeal Manager is described in Annex 1 below, the Decision Maker’s Guide paragraph 7 and in the DWP Appeal Manager’s guide 9.3. Appeals on discipline matters must be heard, where this is possible, by someone senior to the person who made the decision being appealed who is also from outside the business unit of that employee. If this is impossible due to operational circumstances, or for some other reason, the appeal for warnings but not dismissals may exceptionally be heard by a manager at the same level as the Decision Maker. 9.4. The Appeal Manager must not be the Decision Maker, the Decision Maker’s line manager, or the employee’s countersigning manager unless everyone agrees that they can be. Appeal Managers must be demonstrably impartial and independent of the original case in that they or their line manager must not have been previously involved in the disputed decision so that they are able to take an objective viewpoint. For example they must not have been involved in the day to day issues 51 of 54 and procedures leading up to and raised by the appeal. This ensures that the Appeal Manager brings a fresh mind and independent view to the appeal.[109]Further, in the Appeal Manager’s Guide , which contains advice for managers conducting appeals , the following provisions appear: 6. Seek clarification If you require further clarification once you have received the written appeal and read through the case details you can:• discuss policy, practice and employment law with CSHR Casework• discuss details of the specific case with the investigator• discuss the decision making process with the original decision-maker.[110]Whilst not apparent from the papers, the Tribunal expects that these provisions will have been discussed and agreed with the relevant Trade Unions over the years, and that they are accepted as being reasonable. Even if that is not the case, these were clearly the respondent’s own procedures, and they were adhered to.[111]On the basis of the fairly basic requirements of the ACAS Code and Guide, and the rather more specifically permissive provisions of the respondent’s own policies, the Tribunal can see nothing in the communications between Mike Shaw and Kerrie Washington which render the appeal decision unreasonable. That Mike Shaw, chosen because of his distance from the business unit in which the claimant and Kerrie Washington worked, needed to understand more about the processes involved is understandable , and his need to gain further understanding of the operational issues involved was natural. In any event, the respondent’s own procedures permitted him to go further and actually discuss the decision making process with Kerrie Washington. The risk of any undue influence that she may had had in these circumstances is also clearly negated by the fact that Mike Shaw did not uphold what was perhaps her most significant finding in relation to the FSF issues.[112]The Tribunal therefore concludes that the dismissal was not vitiated by any contact between Mike Shaw and Kerrie Washington , and was, in all the circumstances, fair. Postscript.[113]For completeness, however, had the Tribunal found that the dismissal was unfair, it would have gone on to consider the issue of contribution. The respondent sought , in the alternative, contribution to the extent of 100% on the basis of the three types of misconduct that the claimant had, the Tribunal is invited to find, committed. In relation to the FSF issues, the Tribunal could not have made any such reduction to the compensatory award under s.123(6) of the ERA, for the simple reason that any such conduct on the part of the claimant must have contributed to the dismissal. On Mike Shaw’s findings, it did not. That, however, would not be true of the other two grounds for dismissal. The Tribunal would have found that in respect of that conduct the claimant did conduct herself in a manner which would justify a reduction to the 52 of 54 compensatory award for contribution, which the Tribunal would have assessed at 50%, the claimant’s own case being that her conduct merited a warning.[114]There may remain other, rather esoteric but academic, issues as to any reduction to the basic award (where the conduct does not have to have contributed to the dismissal) , but they need not be addressed any further here, and are of rather less significance.[115]The claim is dismissed. Approved by: