Mr J Penfold v Department of Work and Pensions: 3202082/2023

EMPLOYMENT TRIBUNALS

Case No 3202082/2023

Between

Mr J PenfoldClaimant

Department of Work and PensionsRespondent

Before

Employment Judge Park

Members

Mrs J Clark

Mr S Woodhouse

In person for claimant

Mr D Earl (instructed by counsel) for respondent

Date 11 December 2025

JUDGMENT

[1]The respondent fairly dismissed the claimant. The claimant’s claim for unfair dismissal does not succeed and is dismissed.

[2]The claimant had no contractual entitlement to a stress risk assessment. The claimant’s the claim for breach of contract is not well founded and is dismissed.

REASONS

[1]The claimant’s claims were for unfair dismissal and breach of contract.

[2]The issues had been identified at a preliminary hearing held on 8 February 2024. The respondent said the claimant was dismissed due to his conduct. The claimant did not dispute that conduct was the reason for dismissal, but he disputed that dismissal for that reason was fair.

[3]The breach of contract claim related to the claimant’s allegation that the respondent failed to implement a stress management plan. The claimant says that he had a contractual right to such a plan and the respondent failed to put one in place following his request. The respondent disputes there was any such contractual right.

[4]At the preliminary hearing the claimant indicated he wished to pursue a claim for whistleblowing. This was not in the ET1 and the claimant was informed he would need to make an application to amend his claim. Directions were given to that effect. The claimant did not make an application to amend in accordance with the directions. At this hearing the claimant indicated he had wanted to pursue this claim and he thought he had sent an email to the Tribunal to this effect. On checking the claimant ascertained he had drafted an email but it had not been sent. As a result no amendment application had been made so no claims had been added. Procedure, documents and evidence heard

[5]The claimant appeared in person. The respondent was represented throughout proceedings and at the hearing.

[6]A joint bundle of documents had been prepared and was provided for use at the hearing. The claimant said he had only just received this. The case had been ongoing for some time and had originally been listed for a final hearing in December 2024 and a bundle prepared for that hearing. The bundle had been updated and the claimant had only received the final version just before this hearing, but there was no indication that he had not had earlier versions or not seen the documents earlier. The most recent additions related to the Tribunal proceedings so were not new evidence about the matters to be determined.

[7]There had been a lengthy dispute between the parties before the hearing about redactions in the bundle and the claimant’s witness statements. Some of these documents related to separate family court proceedings. Directions had been made previously requiring the claimant to obtain certain permissions to include those documents. The respondent said that the claimant had not complied with those directions so the disputed documents should not be included. The claimant maintained he did not need permission as the information was his rather than court documents.

[8]We explained to the claimant the scope of what the Tribunal would be determining. It appeared that the disputed redacted documents were unlikely to be of any direct relevance to the matters that were being determined. If the claimant had not complied with the directions then he could not rely on those documents. It would not be in accordance with the Overriding Objective to delay the hearing to allow him to take further steps to enable the documents to be admissible when it appeared they were only tangentially relevant in any event.

[9]The claimant had asked for a computer to be available in the hearing to enable him to demonstrate how certain of the respondent’s systems worked. We explained to the claimant that this was not possible. Based on the list of issues such evidence was also unlikely to assist the Tribunal in reaching its decision that it needed to make. Findings of fact

Background

[10]The claimant was employed by the respondent working on Universal Credit within their Basildon office. His employment commenced in 2019. During the course of his employment the claimant had progressed and at the relevant time he was a team leader.

[11]The claimant was employed on a contract of employment that was the respondent’s standard terms and conditions. This comprised a statement of terms that included the main terms and conditions such as entitlement to pay, leave and notice. It also included provisions that referred to other documents. These included the following: 11.1. It states that “full details of your conditions of service are contained on the Department’s intranet site”. 11.2. There is a clause relating to use of departmental computers. This refers to various other policies that applied. It also expressly stated that “accessing departmental information for any purpose not related to departmental business may result in disciplinary action.” 11.3. There is a clause about use of official information, which refers to other legislation that applies. In addition there is a reference to the Civil Service Code which the claimant was bound by.

[12]The claimant’s terms and conditions states that his manager may hold other documents that include additional terms and conditions that had been agreed with him. There is then a general statement that says “Full details of your conditions of service are contained on the Department’s intranet site”. There is also reference to the claimant being bound by collective agreements that are in place or are made in the future. Other than this the claimant’s statement of terms does not expressly refer to any particular policies being contractual.

[13]The respondent has a number of different policies. We were not provided with a comprehensive set of policies, just those that were relevant. These included the following policies: 13.1. The stress at work policy, stress at work procedures and stress at work advice. 13.2. The acceptable use policy, which relates to technology and information, and the Information Management policy. 13.3. The disciplinary policy and other related guidance.

[14]These are all detailed documents including lengthy narratives describing what should happen. These documents are not expressly referred to within the claimant’s own statement of terms. The documents themselves do not include any wording which indicates they are contractual documents. They are policies which include various commitments by the respondent expressed in quite general terms. For example, the Stress at Work procedures start by saying “DWP will take all reasonable steps to reduce health and safety risks from stress in the workplace”. There are key aims and objectives and procedures that should be followed and guidance for both employees and managers.

[15]During 2022 the claimant reported feeling stressed at work. At the time he was being managed by Vanessa Watts. On 26 October 2022 he sent an email to Ms Watts and copied in Sam Cockayne, the Senior Operations Leader. He said he would like to complete a stress related form. He completed a stress management plan, indicating on this areas that were stressors and how significant they were. This was sent to Ms Watts and Mr Cockayne on 28 October 2022. We heard that there was also a grievance ongoing at the time.

[16]Mr Cockayne explained that he arranged for the claimant to move floors and change line management. Mr Cockayne explained that he understood the key issue causing stress was the claimant’s line management. We accepted this was the case. It is consistent with the stressors that the claimant had highlighted as being a problem, which were all related to interpersonal relationships, expectations in his role and support from management. These would all potentially be addressed by a change in manager.

[17]It was accepted by the respondent that no follow up review happened in relation to the stress management plan. However, the claimant did not pursue the matter either or indicate to Mr Cockayne or anyone else that he continued to suffer from stress after the change in line management. Events leading to dismissal

[18]On 16 May 2023 the claimant’s ex-partner sent a complaint to the DWP that she believed her records had been accessed by either the claimant or his brother, who also worked for the respondent. In this complaint the ex-partner referred to ongoing family court proceedings.

[19]This complaint was forwarded to Mr Cockayne. Usually this would have been dealt with by Denise Sullivan, the Site Leader, but Ms Sullivan was on leave at the time. In her absence Mr Cockayne contacted the security team to investigate and asked them to do an audit on the claimant.

[20]Mr Cockayne said he was aware that the complainant was the claimant’s expartner and that there was an ongoing dispute in the family court. Because of this context he viewed the situation as urgent and the investigation needed to be progressed swiftly.

[21]The respondent carried out an audit. These showed that the claimant had searched for his ex-partner’s name on 3 March 2023 and appeared to have accessed her case file 5 times. The audit also appeared to show the claimant accessing one of her files again on 11 April 2023.

[22]Lesley Goodwin was appointed to investigate. On 24 May 2023 Mrs Goodwin sent the claimant a letter inviting him to an investigation meeting. Evidence was attached to the invitation. This was sent to the claimant by email.

[23]The same day Mr Cockayne gave the claimant in person a copy of the letter. He said this was because they were in the same building. He says that the claimant appeared nervous so he arranged a telephone meeting between the claimant and Mrs Goodwin to introduce them. In fact the claimant already knew Mrs Goodwin as they had worked together previously and she was also close to extended family members of the claimant who also worked for the respondent. The claimant did not object to Mrs Goodwin undertaking the investigation. On the contrary the claimant reported that he felt reassured after this initial discussion.

[24]The letter inviting the claimant to the investigation included a brief summary of the allegation. It stated that it was alleged he had accessed an account without a valid business reason on 3 March 2023 and 11 April 2023. Therefore, the claimant knew the gist of what he was being accused of on 24 May 2023. He did not put forward any explanation when he had that initial informal meeting with Mr Cockayne and Mrs Goodwin.

[25]Mr Cockayne had also arranged for the claimant’s access to be changed and for him to be transferred to a temporary role pending the investigation. This change was communicated to the claimant’s team in a way that suggested it was due to a business need.

[26]The claimant attended an investigation meeting on 31 May 2023 with Mrs Goodwin. Minutes were taken of this meeting. They were sent to the claimant and he was able to provide comments. We understood that the minutes were updated to take into account the claimant’s input. The claimant has not suggested there are any significant problems with the final notes, therefore we accept them as an accurate record of that meeting.

[27]During this meeting the claimant explained that he had accessed the file accidentally due to typing in his ex-partner’s name automatically when he was looking for a similar name. He said he realised his error but forgot to report it due to other stress he was under at the time. The other key points he made in this meeting were as follows: 27.1. He said he had been working on court documents a lot at the time which was why he accidentally typed his ex-partner’s name. 27.2. He said the file would not have been within his area so he would not have been able to access it without putting in a reason. 27.3. He already had the information highlighted as having been accessed in the original complaint. 27.4. It had happened on a Friday and he had meant to report it on the Monday but then had not done so. This was due to being worried about other personal matters and work stress. 27.5. When asked about the second occasion he explained he had been on annual leave but logged on for some reason and it must have automatically restored the tab because he had multiple tabs open.

[28]Mrs Goodwin asked if the claimant had undertaken a stress management assessment. The claimant said he had and had submitted it in November 2022 but it had not been followed up.

[29]Mrs Goodwin said to the claimant during the meeting there had been access so may be a case to answer. She asked if there was anything the claimant wanted to add or anyone she should interview to assist his case. The claimant did not identify anyone who should be interviewed. He raised further issues about the family court proceedings. He suggested that his ex-partner was trying to cause problems for him. Mrs Goodwin suggested that the claimant gather the evidence to show he had nothing to gain from unauthorised access in the disciplinary process. She also informed the claimant that she would be contacting the Security Access Team to find out more about what the reports showed and also what he could have accessed.

[30]Mrs Goodwin was not able to attend the hearing. A witness statement had been prepared on her behalf but she was not cross-examined so this evidence was untested. Within this statements she had stated that she felt that the claimant’s explanations were not convincing. Specifically, she did not accept his explanation about tabs being restored after 5 weeks of not being used. Although we did not hear from Mrs Goodwin in person this evidence was consistent with the contemporaneous documentary evidence.

[31]Mrs Goodwin undertook further investigation by asking security about the claimant’s access, to see if it matched what he had said about not being able to access his ex-partner’s account. They informed Mrs Goodwin that the screen asking for reasons would be bypassed. Mrs Goodwin also asked Mr Cockayne which areas the claimant would have been able to access. Mr Cockayne said that the claimant had unrestricted access.

[32]Mrs Goodwin completed her investigation and prepared a report. In this she said that there was a case to answer and set out her reasons. The report indicates that she did not find the claimant’s explanations convincing. Within this she noted the mitigation the claimant had put forward. She said that at the disciplinary hearing the claimant should provide evidence of this.

[33]Mark Creasey was appointed as the disciplinary decision maker. On 6 June 2023 he wrote to the claimant inviting him to a meeting on 13 June 2023. The investigation report was provided to the claimant.

[34]The hearing was postponed at the claimant’s request. It was initially rearranged to 6 July 2023 due to the claimant being on leave at the end of June. At the claimant’s request that date was changed as was the next one, which was set for 11 July 2023. The hearing eventually went ahead on 18 July 2023. Mr Creasey said the meeting would not be rearranged again.

[35]The claimant had continued to be in contact with Mr Cockayne. In early June Mr Cockayne had sent the claimant copies of the relevant policies to assist him with the process. These included policies about information security, the Acceptable Use Policy, Standards of Behaviour and data protection.

[36]The claimant also asked Mr Cockayne for information about his access levels. Mr Cockayne contacted security and obtained some generic information that indicated Team Leaders would only be able to access files for one site. He forwarded this to the claimant on 9 June 2023. On 17 July 2023 he emailed Mr Cockayne about his own personal access. Mr Cockayne directed the claimant to the security team. He received a response which confirmed he had access based on being in Basildon only. The disciplinary hearing

[37]The claimant attended the disciplinary hearing on 18 July 2023. He was accompanied by his trade union representative.

[38]We were provided with minutes of the meeting. The claimant has said in evidence that these were poor and did not reflect what was said accurately. The version we saw had been amended to include comments made by the claimant and his trade union representative. At the time the claimant sent an email complaining that the notes were not comprehensive. Within this he sets out a lengthy list of points he says were not covered in the minutes. Having reviewed these and the revised minutes we have concluded that the majority of points raised were then included in the amended notes. The amended notes we have seen were heavily redacted. We have presumed that these parts relate to matters raised by the claimant about the background family court proceedings, which are not of direct relevance to the issues we need to determine. Overall, we were satisfied that the version provided does include input from the claimant and they are broadly accurate and reflect what was discussed.

[39]At the meeting the claimant was able to put forward his explanation for the apparent access to his ex-partner’s account on 3 March 2023 and 11 April 2023. These explanations were similar to those given to Mrs Goodwin. The main points the claimant made during the hearing were as follows: 39.1. He confirmed he was working from home on both 3 March 2023 and 11 April 2023. On 11 April 2023 he had actually been on leave but had logged on. In the investigation he could not recall why he had logged on. During the disciplinary he said he thought he had been contacted about a team member being sick. 39.2. The claimant provided a more detailed explanation about why on 3 March 2023 he was searching for the name of an individual with a name similar to his ex-partner. This was to explain how he searched her name by mistake. He said he had emails to prove this. He said that he then automatically would have opened all the files then came straight out of them. He reiterated that it was a mistake and once he realised he did not go further into the file. 39.3. He provided a more detailed explanation about why he did not report the error to his manager at the time. He said he tried to speak to his team leader but then gave several reasons why that was not possible and he then forgot. 39.4. The claimant spent a lot of time explaining how he was having mental health issues and stress at work due to various ongoing issues both inside and outside of work. 39.5. The claimant queried the respondent’s evidence about the level of access he would have had so whether he would have been able to get into the file without requesting temporary access. 39.6. The claimant’s explanation about 11 April 2023 was broadly the same but he went into more detail explaining that the tab was already open and would be restored when refreshed. 39.7. The claimant explained again to Mr Creasey that he already had the information that his ex-partner had referred to him obtaining in the original complaint. He explained he would not need to have accessed her case file to obtain this as he had received it via the family court process already.

[40]In respect of many points, the claimant had indicated he had additional evidence. Mr Creasey asked him to send information about the other individual who had a similar name to the ex-partner and information about how he had sought support from a leader. Mr Creasey explained what would happen next. At the end of the meeting the claimant went through his explanation of events on 11 April 2023 again.

[41]The claimant had collated a number of documents for the disciplinary hearing. He sent these to Mr Creasey after the meeting. In total the claimant sent Mr Creasey 68 pages of documents that have been described by the claimant during this case as mitigation. These were varied and included the following: 41.1. The emails and other information the claimant had gathered relating to the level of access he had to cases outside Basildon. 41.2. Emails from February 2023 about the individual with a similar name to his ex-partner who he said he had been searching for on 3 March 2023. 41.3. Some emails from 4 March 2023 about the days he was working. These just related to whether he was working or not. 41.4. Documents related to the stress he said he was suffering at work. This included the stress management plan from October 2022 and emails from that time. He also sent emails and documents about other difficulties he had been facing at work, such as a grievances brought by him against a colleague and a grievance brought by that colleague against him. There were also emails about other conflicts with colleagues from after the incidents. 41.5. Emails about a job application he was completing in April 2023. He said that this was in part why he had logged on to his computer while on leave on 11 April 2023. 41.6. The claimant provided brief explanations of what the various pieces of information showed and why he said it was relevant. 41.7. The claimant also provided some more information about personal matters. We were not provided with these actual documents, but there is no dispute that they were provided. Our understanding is that they mainly provided additional evidence about the stressful events the claimant was facing at the time. This also demonstrated that the claimant already had the information that was identified in the original complaint. We did not see these documents but the respondent accepted that this evidence did demonstrate the claimant’s point.

[42]Mr Creasey acknowledged on 19 July 2023 and informed the claimant he would factor in these emails in his decision making. He also sent the draft minutes of the meeting.

[43]On 21 July 2023 the claimant sent some further whatsapp messages about 11 April 2023. He also sent Mr Creasey the amended notes along with a lengthy email setting out the points he said had been discussed but not reflected in the notes. We concluded the final version of the notes adequately reflected what was in this email.

[44]The respondent’s disciplinary process includes a requirement for the decision maker to review the case with HR. On 21 July 2023 Mr Creasey made a referral to HR. In the referral he says that the intended action was potential dismissal or final written warning.

[45]Mr Creasey had a telephone consultation with HR. On 24 July 2023 HR sent him a summary of their advice. This indicates that there was a detailed discussion about the disciplinary hearing and the information the claimant had provided which was described as mitigation. HR confirmed that dismissal would be consistent with similar cases.

[46]The respondent’s disciplinary process includes a template for decision makers to use. Mr Creasey completed this document. The template includes a section on mitigation and asks if any mitigation was ruled out. Mr Creasey has stated that he has ruled out three points. These are as follows: 46.1. He found the claimant’s explanation did not fully explain why he had sought to access the file on more than one occasion. 46.2. He did not find the claimant’s explanation about having made an error in the name he typed satisfactory. He concluded that the audit showed that having typed the name the claimant then went on to select the file. 46.3. He did not find the claimant’s explanation for the access on 11 April 2023 satisfactory.

[47]On these points, we note they are described as being mitigation. However, they were actually the claimant’s explanation for how he ended up accessing his ex-partner’s file on 3 March 2023 and 11 April 2023. Mr Creasey found these explanations lacked plausibility and this is what is recorded in the decision making template.

[48]Within the template Mr Creasey also recorded the reasons why he decided on dismissal, rather than a final written warning. He records 4 reasons: 48.1. The claimant’s possible motive. 48.2. He accepted the claimant already had the information that he was said to have obtained via the access, but he concluded there may have been other information that could have been found. 48.3. He noted the claimant had been in difficult personal circumstances. However, he concluded there was no evidence that this is had any impact at the time that the incidents occurred. 48.4. He found the explanation of how access had occurred, i.e. it was a mistake, implausible.

[49]Mr Creasey decided to uphold the allegations. The claimant was informed of the decision by letter dated 25 July 2025. Mr Cockayne gave him the letter in person.

[50]Mr Creasey’s letter is lengthy and sets out his explanation in detail. He addresses the various points the claimant had made. They key point, which is clear from the letter, is that Mr Creasey did not find the claimant’s explanation of how the access had occurred credible.

[51]In the decision letter Mr Creasey referred to certain guidance. The claimant emailed Mr Cockayne to query this. The query was passed on to Mr Creasey who responded to the claimant providing the completed decision maker’s template and the guidance that had been referred to.

[52]The claimant had been told he had a right to appeal. Initially Mike King was appointed as the appeal manager. The claimant objected to this and Ian Young was appointed instead.

[53]During early August 2023 the claimant corresponded with Mr Young, Mr Cockayne and Mr Creasey about appealing, but did not submit an appeal. He complained he was still waiting for evidence from Mr Goodwin, which was delaying his appeal. The claimant was granted an extension of time to appeal.

[54]On 24 August 2023 the claimant sent the reasons for his appeal. This was very lengthy. It reiterated much of the points that had been raised by the claimant during the disciplinary but at greater length. The claimant particularly focussed on wider issues relating to his state of mind.

[55]An appeal hearing was held on 11 September 2023. During this the claimant was able to explain his grounds for appeal in more detail. The claimant’s position was the same as it had been during the disciplinary process. He did not provide any new evidence.

[56]Before concluding the appeal Mr Young also had a consultation with HR.

[57]On 5 October 2023 Mr Young wrote to the claimant with the outcome. The decision to dismiss was upheld. The letter advising the claimant of the decision is detailed, addressing the various points that the claimant had raised. Ultimately Mr Young found that Mr Creasey’s decision was reasonable. He accepted Mr Creasey’s conclusion that the explanation for why the claimant had accessed his ex-partner’s records was not credible.

The Law

[58]The right not to be unfairly dismissed is conferred by Section 94 of the Employment Rights Act 1996. Where, as here, there is no dispute that an employee was dismissed, the question of whether any such dismissal was unfair turns upon the application of the test in Section 98 of the Employment Rights Act 1996. The material parts of that section are as follows: “98 General.(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it – (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that Case Number: 3202301/2019 26 of his employer) of a duty or restriction imposed by or under an enactment.

(3) ...

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”

[59]For the purposes of Section 98(2) ERA 1996 'conduct' means actions 'of such a nature whether done in the course of employment or outwith it that reflect in some way upon the employer/employee relationship': Thomson v Alloa Motor Co Ltd

[1983] IRLR 403

, EAT. It is not necessary that the conduct is culpable JP Morgan Securities plc v Ktorza

UKEAT/0311/16

[60]Where the reason, or principal reason, for the dismissal is established as conduct then it will usually, but not invariably, be necessary to have regard for the guidance set out in British Home Stores Ltd v Burchell

[1978] IRLR 379

, which lays down a three-stage test:(i) the employer must establish that he genuinely did believe that the employee was guilty of the misconduct;

(ii) that belief must have been formed on reasonable grounds; and

(iii) the employer must have investigated the matter reasonably. Following amendments to the statutory scheme the burden of proof is on the employer on point (i) (which goes to the reason for the dismissal) but it is neutral on the other two points Boys and Girls Welfare Society v McDonald

[1996] IRLR 129

[61]The correct test is whether the employer acted reasonably, not whether the tribunal would have come to the same decision itself. In many cases there will be a 'range of reasonable responses', so that, provided that the employer acted as a reasonable employer could have acted, the dismissal will be fair: Iceland Frozen Foods Ltd v Jones

[1982] IRLR 439

. That test recognises that two employers faced with the same circumstances may arrive at different decisions but both of those decisions might be reasonable.

[62]The range of reasonable responses test applies as much to any investigation and the procedure followed as it does to the substantive decision to impose dismissal as a penalty Sainsbury's Supermarkets Ltd v Hitt

[2003] IRLR 23

[63]In terms of the reasonableness of the investigation and the procedure that was followed, the “relevant circumstances” referred to in Section 98(4) include the gravity of the charge and their potential effect upon the employee A v B Case Number: 3202301/2019 27

[2003] IRLR 405

. A v B also provides authority for the proposition that a fair investigation requires that the investigator examines not only the evidence that leads to a conclusion that the employee is guilty of misconduct but also that which tends to show that they are not. However, where during any disciplinary process an employee makes admissions a reasonable employer might normally be expected to proceed on the basis of those admissions CRO Ports London Ltd v Mr P Wiltshire

UKEAT/0344/14/DM

[64]When considering a complaint of unfair dismissal under s.98(4) of the 1996 Act, where the employee has exercised a right of appeal in disciplinary proceedings the tribunal must consider the overall process Taylor v OCS Group Ltd

2006 ICR 1602

, CA.

[65]Section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992 provides that: “any Code of Practice issued under this Chapter by ACAS shall be admissible in evidence, and any provision of the Code which appears to the tribunal or Committee to be relevant to any question arising in the proceedings shall be taken into account in determining that question.” The relevant code for present purposes is the ACAS Code of Practice on Disciplinary and Grievance Procedures 2009. Breach of contract

[66]The claimant claims breach of contract under article 3 Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994, and unfair deductions from wages under s.13(1) Employment Rights Act 1996.

[67]In a claim for breach of contract the claimant must identify the relevant term of their contract of employment and the conduct which they say is in breach of that term.

[68]The construction of a contract is governed by common law rather than any statute. Terms and conditions will often be set out in writing in a contract of employment but this may not include the entirety of both parties’ contractual obligations to the other. Other terms may come from the following sources: 68.1. Additional terms, or variations of terms, that have been expressly agreed between the parties either orally or in writing. 68.2. Terms that are set out in other documents, such as collective agreements or company policies or procedures. Such terms will only be contractual if they are incorporated into the contract. 68.3. There may be implied terms. These may be through custom and practice. They also include terms such as the implied term of mutual trust and confidence in every contract of employment. 68.4. Some terms are implied by statute, such as the right to minimum notice.

[69]Matter set out in additional documents relating to an individual’s employment, such as policies and procedures are not necessarily contractual, even if referred to in the employment contract. Such terms are only contractual if they have been incorporated into the contract. Such terms must also be apt for incorporation. Where a longer document, such as an employee handbook is referred to in a contract, it does not follow that it will all be incorporated into the contract. Only those parts apt for incorporation will be contractual. Conclusions Breach of contract

Conclusions

[70]The claimant’s claim for breach of contract relates to a stress management plan. The claimant says that he had a contractual right to a stress management plan and the respondent failed to put one in place following his request in October 2022.

[71]In support of his argument the claimant relied on the various policies and procedures the respondent has relating to stress. This included the stress at work policy, stress at work procedures and stress at work advice.

[72]The claimant’s terms and conditions do make it clear that there may be other contractual terms not included in the individual contract. Within this document there is then a very general reference to conditions of service being found on the intranet. This indicates where the claimant can find other matters affecting his employment. However, it provides no indication of what specific other terms may be found on the intranet.

[73]This is a case where the contract refers to extraneous documents, i.e. those on the intranet, without specifying what is incorporated into the contract. The claimant’s contract just states full conditions of service are on the intranet. Not everything on the intranet is going to be contractual. Much of what an employer may include on the intranet may just be information, guidance or news. These will not be contractual matters. There may be other sections which are contractual, such as entitlements to enhanced sick pay or maternity pay.

[74]To succeed with his claim the claimant needs to show that all or some of the documents on the intranet about stress management are contractual and incorporated into his terms and conditions. He will also need to show that these provide a clear contractual obligation on the respondent to undertake a stress risk assessment in certain circumstances.

[75]We were only provided with the extracts of the various stress related policies and procedures. These appear to have come from the intranet. There is no express statement within any of the introductions to these documents stating that they form part of the employee’s contract. They all start with general commitments made by the respondent to address stress in the workplace. The policy defines various responsibilities, placing that on both individuals and managers. The procedure includes some information about stress risk assessments and other ways managers may deal with stress in the workplace.

[76]Reading these documents there is nothing within them that makes it clear that they are contractual. Neither would they be apt for incorporation into a contract. There is an underlying duty on an employer to provide a safe workplace. To comply with this duty an employer would be expected to take steps to manage stress in the workplace. The stress policy, procedure and guidance provides the information managers need to ensure this is done. The purpose of the documents is to ensure that the respondent does comply with its obligations. It does not create a specific obligation to undertake certain fixed steps, such as a particular type of risk assessment, because that would be overly restrictive. It would place a burden on the employer to do certain things when they may not be appropriate in the circumstances.

[77]As the claimant has not proved there was a contractual obligation on the respondent to undertake a stress risk assessment his breach of contract claim does not succeed. Unfair dismissal

[78]The respondent says that the reason they dismissed the claimant was his conduct, which is a potentially fair reason for dismissal. The claimant does not dispute this.

[79]We agreed that the reason for dismissal was conduct. It is clear that the investigation and disciplinary process was triggered because an audit showed that the claimant appeared to have searched for and accessed his ex-partner’s account. The respondent’s policy makes it clear that accessing individual’s records without authorization is potential misconduct. There is nothing which suggests that the subsequent dismissal was for any other reason.

[80]The allegation the claimant faced was that he accessed his ex-partner’s account on seven occasions. Most of these were on 3 March 2023 and the final one was on 11 April 2023. This was unauthorized because the claimant had no business need to access those records. There was no dispute that the records showed that he had searched for the ex-partner’s name and then accessed records on those occasions.

[81]The decision maker was Mr Creasey. He concluded that the claimant had accessed the records. Mr Creasey did not accept the claimant’s explanation that it had happened by accident. The consequence of this is that Mr Creasey concluded that the claimant deliberately accessed his partner’s records and the claimant did not have a legitimate reason for accessing the records or another reasonable justification for doing so.

[82]We are not required to make a decision about whether we would have reached the same conclusion. We are only deciding whether Mr Creasey’s decision on this point was genuine and a reasonable one to reach based on the available evidence.

[83]The underlying facts in this case were not disputed. The claimant accepted that he had accessed his ex-partner’s case file. There is some uncertainty about what the claimant may actually have been able to see. However, there is no dispute that the claimant searched his ex-partner’s name and did open to some extent the file on several occasions.

[84]The decision Mr Creasey had to make was essentially binary. The claimant said that this had happened by accident. Mr Creasey had to decide whether or not he accepted the claimant’s explanation of how this happened. This would involve consideration of the evidence the claimant provided to support his explanation and an assessment of credibility of the explanation.

[85]The claimant provided what he says was evidence demonstrating how he had accidentally accessed the case files. This was not direct evidence of what happened. There was some evidence about some of the surrounding circumstances the claimant relied, such as another individual with a similar name. The majority of the evidence the claimant submitted related to other matters, such as stress he says he was suffering.

[86]Mr Creasey took time to consider the information the claimant supplied. We accepted that Mr Creasey reviewed all of this, it is reflected within the various contemporaneous documents recording his decision. Ultimately, he was still left with a binary decision on whether or not he found the claimant’s explanation persuasive. He decided it was not persuasive and hence concluded the claimant’s actions were deliberate. This was a decision that was open to him and reasonable in the circumstances.

[87]Mr Creasey then needed to decide on the sanction. Again, we reminded ourselves that we are not deciding if we would dismiss the claimant in the same circumstances. We are deciding if dismissal falls within the reasonable range of responses. This means was dismissal something any reasonable employer could have decided on. A dismissal will not be unfair just because a lesser sanction may also have been an option or reasonable. The dismissal will be fair if dismissal is within that range of reasonable responses.

[88]The respondent has a specific decision making matrix to assist decision makers dealing with allegations of unauthorized access of records. There are different levels of severity. In this case the allegation was treated as potentially being the second most serious level. This is accessing multiple records without a legitimate business reason or appropriate authorization. Based on Mr Creasey’s conclusions on what happened that was a reasonable approach for him to take.

[89]The matrix states that accessing without authorization multiple times is gross misconduct. This provides two possible outcomes, dismissal and final written warning. The matrix states that a final written warning may be appropriate if the employee has a reasonable explanation or other mitigation.

[90]This matrix makes it clear that within the respondent dismissal will always be an option for the decision maker to consider. The respondent also has a process whereby the decision maker consults with HR before finalising the decision. The HR team do not authorize the decision. They provide some guidance, including by confirming that the sanction is consistent with similar situations.

[91]Based on the respondent’s matrix and the guidance from HR Mr Creasey’s decision to dismiss the claimant was consistent with the respondent’s policies and usual practice. This is compelling evidence to reach a conclusion that dismissal was reasonable. If an employer has a very clear policy that certain types of conduct will always be viewed as a serious matter leading to dismissal then it will usually be reasonable for the employer to act in accordance with that policy, once they have concluded that the employee acted in that prohibited way. Dismissal will still need to be reasonable in all the circumstances. Sometimes there may be other circumstances that mean that rigidly following the policy is not reasonable.

[92]During the disciplinary process and this hearing the claimant has referred to the evidence he submitted which he described as mitigation. The documents that the claimant provided were varied. As noted above, some related to the claimant’s explanation for how he said he accidentally accessed the records. Others related to background matters, including the stress he says he was suffering and matters in his personal life. The claimant has said that his evidence was not fully taken into account.

[93]In the context of a disciplinary process mitigation generally refers to factors or circumstances that may be relied on to argue for leniency. The evidence the claimant provided which indirectly related to his explanation for what happened would not be mitigation. This is evidence he relied on to support his position that he accessed the files by accident. Mr Creasey rejected that explanation, having considered the evidence the claimant provided.

[94]The other type of information the claimant provided, such as details of suffering from stress and difficult personal circumstances, in part related to the claimant’s explanation for what happened. He provided evidence of stress to help explain why he made a mistake. Sometimes this evidence could be mitigation, to argue for leniency.

[95]In the document Mr Creasey completed before finalising his decision he set out the reasons why he decided on dismissal rather than a final written warning. Within this he expressly rejected the claimant’s personal circumstances as providing a reason for a lesser sanction. This shows Mr Creasey considered the possibility of giving a warning for the reasons the claimant relies on. He decided that the evidence the claimant provided on this issue did not provide a satisfactory excuse or justification for what he did. Essentially Mr Creasey had already found already that the claimant’s explanation was implausible. Therefore, he also rejected the same factors as being reasons for a lesser sanction.

[96]Taking this into account we accept that dismissal was reasonable in the circumstances. Mr Creasey carefully considered the options and decided in accordance with the respondent’s policy to dismiss the claimant. This was a reasonable option open to him at the time.

[97]Finally, we turn to the procedure. The respondent carried out an investigation once the unauthorized access was discovered. Mrs Goodwin interviewed the claimant and heard his explanation. She investigated further by obtaining more information about the claimant’s level of access. She advised that there was a case to answer. The claimant was provided with the investigation report and supporting evidence. He was invited to a meeting to discuss the allegations. This was postponed a number of times on the claimant’s request. Mr Creasey carefully considered what the claimant had to say before making his decision. The claimant had an opportunity to appeal which he exercised and that was heard by an independent decision maker. There were no identifiable flaws in the procedure. The claimant had ample opportunity to understand the case against him and make any representations he wished. The procedure was fair.

[98]In conclusion, the reason for dismissal was conduct. Following a fair procedure and investigation Mr Creasey upheld the allegation against the claimant. This was a reasonable conclusion based on the evidence. He carefully considered the options and decided to dismiss the claimant. That was also reasonable in the circumstances. The procedure was fair. Therefore the dismissal was fair and the claimant’s claim for unfair dismissal does not succeed.

Conclusions

[1]Under Part 12 of the Employment Tribunals Rules of Procedure 2024 the Employment Tribunal may, either on its own initiative or on the application of a party, reconsider a Judgment where it is necessary in the interests of justice to do so. On reconsideration, the Judgment may be confirmed, varied or revoked.

[2]An application for reconsideration shall be presented in writing within 14 days of the date upon Judgment is sent to the parties. The Judgment in this case was sent to the parties on 19 January 2026.

[3]On 29 January 2026 the claimant sent an email to the Employment Tribunal an application for reconsideration. The claimant’s request was a short email. He stated that he felt that the evidence showed that the dismissal was unfair and a final written warning would have been sufficient.

[4]Under Rule 68, a Judgment will only be reconsidered where it is necessary in the interests of justice to do so. This allows an Employment Tribunal a broad discretion to determine whether reconsideration of a Judgment is appropriate in the circumstances. The discretion must be exercised judicially. This means having regard not only to the interests of the party seeking the reconsideration but also the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.

[5]The procedure upon a reconsideration application is for the Employment Judge that heard the case to consider the application and determine if there are reasonable prospects of the Judgement being varied or revoked. Essentially, this is a reviewing function in which the Employment Judge must consider whether there is a reasonable prospect of reconsideration in the interests of justice. There must be some basis for reconsideration. It is insufficient for an applicant to apply simply because he or she disagrees with the decision.

[6]If the Employment Judge considers that there is no such reasonable prospect then the application shall be refused. Otherwise, the original decision shall be reconsidered at a subsequent reconsideration hearing. The Employment Judge’s role therefore upon the considering of the application upon the papers initially is to operate as a filter to determine whether there is a reasonable prospect of the Judgment being varied or revoked were the matter to be the subject of reconsideration hearing.

[7]The Employment Appeal Tribunal has given guidance as to the nature of a request for reconsideration:a. Reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to re-argue matters in a different way or adopting points previously omitted.

b. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule.

c. It is not a means by which to have a second bite at the cherry, or is it intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.

d. Tribunals have a wide discretion whether or not to order reconsideration. Where a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.

[8]In his email the claimant provided no reasons or explanation why he says it is necessary in the interests of justice to reconsider the judgment. The claimant disagrees with the outcome and the Tribunal’s conclusion that the dismissal was fair. In support of his request he asserts that the evidence shows that the dismissal was unfair.

[9]The Tribunal carefully considered all of the evidence provided by both parties. Having done so it concluded that the dismissal was fair and the claimant’s claim did not succeed. This matter has been fully ventilated and litigated. The claimant is seeking reconsideration purely to relitigate matters which have already been fully considered by the Tribunal following a fair hearing.

[10]I am not satisfied that it is in the interests of justice to reconsider the Judgment. The claimant has provided no reasons why there should be any reconsideration and appears to be seeking reconsideration solely because he is unhappy with the outcome. Approved by: