Mr Mohammed Rahman v The Commissioners for HM Revenue and Customs: 3202352/2019

EMPLOYMENT TRIBUNALS

Case No 3202352/2019

Between

Mr Mohammed RahmanClaimant

The Commissioners for HM Revenue and CustomsRespondent

Before

Employment Judge John Crosfill

In person for claimant

Ms A Meredith (instructed by Counsel) for respondent

Date 15 April 2020

JUDGMENT

[1]The Claimant’s claim for unfair dismissal is not well-founded and is dismissed.

REASONS

[1]From 23 May 2016 until his summary dismissal on 15 May 2019 the Claimant was employed by the Respondent (‘HMRC’) as a ‘Hidden Economy’ Investigator based in Stratford in East London. He was seeking promotion and in 2018 applied for a large number of jobs both within HMRC and more widely within the Civil Service. On 12 October 2018 the Claimant applied for a position as a Senior Response Officer for Civil Contingencies. The application form required evidence or examples that the applicant met 4 competencies. The Claimant in two cases inserted examples that had been provided to him by a colleague without changing or modifying the content. This fact was noted when the application was submitted and prompted a disciplinary investigation and hearing. After a disciplinary hearing the Claimant was summarily dismissed. He appealed that decision but his appeal was not upheld. He has presented a claim for unfair dismissal.

The hearing

[2]This matter had been listed for a full merits hearing with a time estimate of 1 day. The parties had agreed a trial bundle and had exchanged witness statements.

[3]The Respondent had prepared a list of issues. After discussion with the Claimant we agreed that the issues I needed to determine were as follows: 3.1. It was accepted by the Respondent that the Claimant had sufficient continuity of employment for the purposes of Section 108 of the Employment Rights Act 1996; and 3.2. It was further admitted by the Respondent that the Claimant was dismissed for the purposes of Section 95 of the Employment Rights Act 1996; and 3.3. Accordingly, the first matter I was required to decide was whether reason or principle reason for the dismissal was for a potentially fair reason falling within either section 98(1) or 98(2) of the Employment Rights Act 1996. The Respondent says that its reason for the dismissal was ‘conduct’ for the purposes of Section 98(2)(b). The Claimant did not put forward any alternative reason. 3.4. If the dismissal was for a potentially fair reason I would need to determine whether the dismissal was fair or unfair applying the test set out in Section 98(4) of the Employment Rights Act 1996. It was agreed that I would need to ask whether there were reasonable grounds for the conclusion reached by the Respondent formed following a reasonable investigation. I would need to consider whether the decision to dismiss the Claimant was reasonable. 3.5. If the dismissal was unfair I would need to consider whether if it had acted fairly the Respondent might or would have dismissed the Claimant in any event. 3.6. Finally, I was asked to consider whether the basic or compensatory award should be reduced under sections 122(2) and/or 123(6) of the Employment Rights Act 1996 to reflect any conduct by the Claimant.

[4]After reading the witness statements and documents I heard from: 4.1. Mrs A Rawling, a Product and Policy Delivery Assistant Director, and the individual who took the decision to dismiss the Claimant; and 4.2. Sandra Maughan, a Deputy Director of Taskforce and Specialist Compliance and the person who heard the Claimant’s appeal. 4.3. The Claimant himself.

[5]Each witness was cross-examined in the usual way and the hearing was unremarkable. After the evidence Ms Meredith and the Claimant made oral submissions. Ms Meredith had provided written submissions in which she addressed the law. I shall not set out the competing submissions here but have addressed the arguments before me in my discussions and conclusions below.

[6]Unfortunately, by the time that submissions were concluded there was insufficient time for me to give an oral judgment and I reserved my decision. I am grateful to both parties for their conduct of the hearing. In particular, I thank the Claimant for the clear way he explained his case and the care he had taken to prepare his questions of the Respondent’s witnesses.

Findings of Fact

[7]The Claimant commenced his employment with HMRC on 23 May 2016. His role was that of an investigator of the ‘hidden economy’. He carried out inspections and visits to premises where individuals were suspected of trading without properly accounting for tax and/or VAT.

[8]The Claimant told me and I accept that he was one of the top performers in his team, a ‘go to’ person for others. He gave as an example the fact that he had been asked to mentor an employee who had returned from an absence due to a mental health issue.

[9]Once trained the Claimant was keen to seek promotion and from May 2017 he completed numerous applications for other roles.

[10]The Respondent has a number of policies relevant to the issues I need to determine. I was referred to the Civil Service Code and internal policies in respect to conduct. Unsurprisingly given the nature of the role those policies required the Claimant to conduct himself with a high degree of integrity.

[11]The Respondent also published a policy which applied to those applying for jobs. The process of applying was set out in some detail. The application process started with an assessment of eligibility and then required a candidate to provide evidence that they met the core competencies of the role by setting out examples. The guidance that was given included the following: ‘Show how you meet the competencies or behaviours outlined in the vacancy, giving examples that describe what you did, how you did it and what you achieved. Ensure your evidence covers the vacancy requirements and relates to the relevant behaviours. General statements or assertions about what you have done are of little value to an application. Your evidence should focus on actual achievements.’

[12]An employee seeking an alternative position was expected to discuss any application with their manager and the manager was required to check that any evidence submitted in support of an application was true and accurate. The application form required the applicant to give the name of their line manager. I find that the authors of the policy intended the involvement of the applicant’s manager to provide a safeguard against inappropriate or exaggerated applications.

[13]The HMRC policy describes the applicant having to complete a declaration at the end of the application certifying that the content of the application was true and accurate. The Claimant told me, and I accept, that elsewhere in the civil service the process varied slightly and there was no such declaration. That said it was made clear that the information provided could not be altered once submitted.

[14]The Claimant gave evidence that he had attended a training session on demonstrating competencies. He says that he was told to put a positive spin on any achievements. I accept that the Claimant was encouraged to paint his achievements in a positive light. That is not at all unusual in any competitive process. However, I do not accept that he was encouraged to exaggerate his achievements to an unreasonable extent.

[15]The Claimant said, and it was not challenged during the disciplinary process, that in October 2018 he had a number of issues in his personal life which put him under pressure. He was struggling to obtain a visa for his wife who was in Bangladesh and his aunt had fled from domestic violence and was living in his family home.

[16]On 12 October 2018 the Claimant applied for a role as a Senior Response Officer. When he completed the application form he was required to provide evidence for 4 competencies. When submitting evidence in respect of ‘Delivering at Pace’ and ‘Leading and Communicating’ the Claimant accepts he used examples that had been provided to him by a colleague ‘M’.

[17]By October 2018 the Claimant was line managed by Mr Jethwa. On 23 November 2018 the Claimant and Mr Jethwa had a meeting where amongst the matters discussed were the Claimant’s level of professionalism. On 26 November 2018 the Claimant applied for a further 6 jobs.

[18]The Claimant says, and maintained through the disciplinary process, that his conversation with Mr Jethwa on 23 November 2018 led him to review the applications he had made. He withdrew 10 out of 18 applications he said because he recognised that they included M’s competency examples. He says that he intended to raise this with his manager.

[19]On 27 November 2018 Mr Jethwa. received an e-mail from the Claimant’s previous line manager Mr Ali forwarding an e-mail sent to him on 22 November 2018 suggesting that the Claimant and M had used the same competency examples.

[20]The E-mail to Mr Jethwa included guidance on what the next steps should be. The guidance required Mr Jethwa to assess the level of misconduct in accordance with the Respondent’s policy ‘’HR Discipline: How to Assess the Level of Misconduct Guidance’. The suggestion was that in all ‘conduct’ cases he needed to complete a ‘Discipline Checklist – Managers Review’ form. The ‘Level of Misconduct Guidance’ includes as an example of gross misconduct: ‘Deliberately plagiarising any aspect of the application process including the competency examples when applying for a vacancy’

[21]On 28 November 2018 Mr Jethwa held a meeting with the Claimant. Mr Jethwa typed up notes from that meeting the following day. Those notes show, and it was not disputed, that Mr Jethwa told the Claimant that there had been an allegation of ‘plagiarism’ and that that was going to be investigated. A discussion was held about when the Claimant had amended the name of his line manager within his job applications. Mr Jethwa appears to suggest that the Claimant had told him that he had done so on 23 November 2018 but had not actually done so until 27 November 2018. The Claimant is recorded as having said that he might have ‘copied and pasted’ competencies ‘accidentally’. There is no record of the Claimant stating at that stage that he had withdrawn 10 further applications. The Claimant appears to ask what might happen to him. Mr Jethwa is recorded as saying he did not know but speculating that it might be anything from a ban on promotion to dismissal.

[22]Mr Jethwa completed the Discipline Checklist – Managers Review by 29 November 2018. He had categorised the allegation of plagiarism as being potentially gross misconduct. He made a reference to ‘IG Civil’. What this meant in practice was that the allegation would then be formally investigated. At this stage Adele Rawlings was appointed as the ‘Decision Manager’. She was assisted by an HR Caseworker. Under the Respondent’s disciplinary policy, the role of the Decision Manager is separate to the task of investigating the allegations. Amer Ahmed of the Respondent’s Internal Governance Civil Investigations team was asked to conduct the investigation.

[23]On 18 December 2018 the Claimant was given a letter signed by Adele Rawlings, but based on a standard template, that informed him of Amer Ahmed’s appointment to investigate ‘using competency statements that may not belong to you’. He was told that he would be interviewed and that he had a right to be accompanied at that interview. He was warned that the process might lead to his dismissal and that if it did it might be categorised as ‘internal fraud’ which could lead to him being banned from employment in the Civil Service for 5 years.

[24]On 19 December 2018 Amer Ahmad contacted the Claimant by e-mail. He sent him a letter inviting him to an investigatory meeting and providing him with papers that would be referred to at the interview. Those papers included, amongst other documents, all the relevant policies, Mr Jethwa’s disciplinary checklist, notes of the meeting with Mr Jethwa that took place on 28 November 2018 and 7 December 2018, the applications of the Claimant and M for the post of Senior Response Officer and details of all the Claimant’s live job applications.

[25]The disciplinary interview was first scheduled for 14 January 2019 but was rescheduled at the Claimant’s request to accommodate the attendance of his trade union representative Kevin Eaton. The interview took place on 28 January 2019. The Claimant had been provided with some documentation on the day of the interview itself.

[26]The interview conducted by Amer Ahmed on 28 January 2019 was recorded and a full transcript provided. The Claimant was asked if he had read all the documents supplied to him and agreed that he had. He was asked if he was happy to be interviewed and said that he was. During the interview the Claimant said that the policy relating to job applications, and, in particular, the need to discuss job applications with his line manager, had never been brought to his attention. Whilst he was not familiar with the policies in detail he accepted the general point that civil servants needed to maintain high standards of integrity. He suggested that his induction had been rushed and stated that he believed his manager did not realise that job applications and competencies needed to be discussed before they were submitted.

[27]The Claimant was asked about the minutes of the meeting of 28 November 2018. He said that they were ‘fairly accurate’. The discussion then turned to the specific allegations. The Claimant was asked if the competency examples given on his application for the Senior Response Officer’s post were his own. He immediately accepted that they were not. He repeated his previous explanation that he had been sent M’s competencies after M had obtained a promotion ‘to get a better understanding of the STAR format’. Then he had cut and paste the wrong competencies when completing the application. He said that M had helped a number of other people and gave their names. Amer Ahmed asked the Claimant to send him the e-mail from M including the competencies.

[28]The interview then focussed on the failure of the Claimant to check his application. The Claimant said that he had not given it his full attention. The Claimant went on to say that he had no need to use M’s competencies because he had already obtained interviews having scored ‘4s and 5s’ using his own examples. He went on to say that if he had been trying pass off M’s examples as his own he would have amended them to disguise what he was doing.

[29]Some time was then spent asking the Claimant whether competency examples that he said he had written reflected work that he had carried out. The Claimant had provided three examples of job applications. He had also provided a document with competency examples that he had compiled and a list of his current applications. During the interview the Claimant was asked about to of his examples. In relation to an investigation into the dry-cleaning industry the Claimant had said ‘I led a taskforce….’. When describing his work on an investigation into rented property the Claimant had said ‘….As Project lead for the Newham Rental Scheme Taskforce…’. The Claimant said that these examples did reflect his work but later acknowledged that he had put a ‘positive spin’ on his work.

[30]There was a break in the interview and then Amer Ahmed sought to summarise the position. He asked the Claimant directly whether he had acted dishonestly in order to secure an interview. The Claimant denied this and maintained that he had made an error. He said that the job applications that he had withdrawn included competencies that were not his and suggested that he had done that ‘off his own back’ before the matter had been raised with him. He later explained his difficult personal circumstances.

[31]After the interview the Claimant sent Amer Ahmed the e-mail that he had received from M. There was no message in the e-mail. The Claimant sent Amer Ahmed a short statement in which he repeated his contention that the inclusions of M’s competencies was a cut and paste error and that his personal circumstances had placed him in a stressful situation. He also sent further examples of job applications he said were his own work. The Claimant says that at this stage he was not asked for the MS Word document where he had merged his examples with M’s examples. He did not volunteer this document.

[32]Amer Ahmed asked Mr Ali and Mr Jethwa and two other employees to comment upon competencies that the Claimant has submitted in his job applications and whether they recognised the examples given. Mr Ali said that the Claimant had never ‘let a taskforce’ in respect of the dry-cleaning industry nor had he been the lead for the Newham Rental Scheme Taskforce. He made many further comments suggesting that the Claimant had exaggerated or embellished his role in the competency examples he had used for applications. Mr Jethwa agreed with Mr Ali that the claimant had not ‘led a taskforce’ or been a project lead at Newham, describing each as 100% untrue. He identified a number of other aspects of the applications that he considered untrue. Mr Jethwa did say he agreed that the Claimant had done some of the work and exhibited some of the skills he claimed. In this regard he differed from Mr Ali. The other two colleagues dealt with one competency example related to unregistered traders at the V festival. They both suggested that the competency example exaggerated what the Claimant had actually done.

[33]The Claimant was sent Mr Ali and Mr Jethwa’s comments. He sent an e-mail to Amer Ahmed in which he highlighted area of disagreement between Mr Ali and Mr Jethwa. He did accept that he had not been asked to take the lead in the dry-cleaning operation. He accepted that he had not worked directly on the Newham Landlords Licensing scheme but said that he had done some ancillary work. He suggested that RK a former manager might be able to shed some light on his involvement. He had previously suggested that a fellow trainee might be able to provide additional information.

[34]Amer Ahmed then produced a 275-page report (including appendices) in which he concluded that there was a ‘case to answer’. In preparing his report he prepared a table showing that in respect of the 4 competency examples used in the application for a Senior Response Officer two had been used by M in his application for the same role and one other had been used by M when applying for a role as SEO Policy advisor. The final example used by the Claimant was found on the document e-mailed to him by M. This led Amer Ahmed to conclude that all the examples used by the Claimant had originally been prepared by M. In writing the report Amer Ahmed did draw attention to the Claimant’s explanations and the matters he relied upon as mitigation for his actions.

[35]The Claimant was invited to attend a disciplinary hearing at the same time he was sent a copy of the investigation report. The letter of invitation made it clear that one possible outcome would be dismissal. The Claimant was informed of his right to be accompanied at that hearing. The allegation to be considered was expressed as: ‘your conduct has been brought in to question following notification that you may have used competency statement/s of a colleague for the post of ‘Senior Responsible Manager’

[36]The hearing was originally to be held on 5 April 2019 but was re-organised on two occasions the first to accommodate the Claimant being unwell and the second to accommodate the attendance of his trade union representative. The hearing finally took place on 8 May 2019. The final invitation letter had slightly different wording in that it expressly alleged that the job application had been ‘falsified’.

[37]There was a note taker present and the notes of the hearing have been subsequently typed up. Neither party suggested that they were inaccurate in any material respect.

[38]It is clear from the record of that hearing that the Claimant maintained his account that his inclusion of competency examples authored by M was inadvertent – a cut and paste error. He accepted that all 4 of the competency examples in his application had been written by M. He disagreed with the analysis of Mr Ali and Mr Jethwa in some respects. He said that he had been a consistent top performer and had no need to rely on the achievements of others. He repeated his explanation that he had withdrawn 10 applications which had also contained competency examples he could not properly rely upon before the matter had been brought to his attention.

[39]In reaching her decision Adele Rawlings completed a document entitled ‘Decision Makers Deliberations’. In essence, that document sets out the background and the reasons for her conclusions. In her evidence before me Adele Rawlings did not depart from the reasons given in that document in any material way and I am satisfied that she has set out the evidence and reasons that led her to a conclusion that the Claimant should be dismissed.

[40]Adele Rawlings understood that the key issue for her was whether the Claimant’s use of M’s competency examples was, as he said inadvertent, or was deliberate. Her starting point was that all 4 competency examples included on the application for the Senior Response Officer role had been authored by M. The Claimant had accepted that that was the case. She then considered whether that action was or was not deliberate. She concluded that it was. She took into account the following matters: 40.1. The fact that the Claimant suggested he had not checked the application despite a warning that he should; and 40.2. The sheer volume of applications that the Claimant made and the fact that he withdrew 10 which had not contained his own work; and 40.3. The Claimant’s evidence that he had obtained interviews using examples of his own work tempered against the fact that some of the Claimant’s own examples, in particular the claim to have been a project leader, were exaggerated or false; and 40.4. She had regard to the Claimant’s suggestion that if he had acted deliberately he would not have used M’s examples without altering them.

[41]Adele Rawlings then considered what action she should take. She accepted that the Claimant was under pressure as he suggested dealing with his wife’s visa, his aunt’s domestic violence issues and mentoring a colleague. It is also clear that she accepted that the Claimant’s induction had not been well organised as she included recommendations in that respect in her notes. That said, she concluded that the Claimant had been dishonest and she was not convinced that that would not be repeated. She decided to dismiss the Claimant. She set out her decision in a letter dated 15 May 2019. The letter was delivered by hand by Terri Hannah a senior manager in the team in which the Claimant worked. Adele Rawlings was unable to hand deliver the letter herself as she was working in Nottingham. The Claimant’s Trade Union representative sent an e-mail on 17 May 2019 questioning whether there had been a breach of policy. Adele Rawlings respondent disputing that was the case.

[42]The Claimant was able to appeal within the time frame stipulated by the Respondent’s policies. He sent a letter on 24 May 2019 within which he set out a number of grounds of appeal. I can summarise his grounds of appeal as follows; 42.1. he repeated his stance that any copying of M’s examples was inadvertent; and 42.2. he suggested that Amer Ahmed had been unfair because he had not contacted the two individuals the Claimant had said might assist with the question of whether some competency examples he had drafted were exaggerated; and 42.3. he argued that as he had placed M’s examples to support different competencies than when used by M that this suggested that he could not have acted deliberately; 42.4. he suggested that his withdrawal of 10 applications demonstrated his honesty; 42.5. he said he had overlooked some points because he had been fasting at the time of the disciplinary meeting. In particular, the failure to draw the policy of discussing applications with a manager had not been drawn to his attention; and 42.6. that insufficient weight had been placed on his personal circumstances; and 42.7. that the decision to dismiss him was disproportionate.

[43]The Claimant was invited to an appeal meeting by a letter sent on 19 June 2019. He was reminded of his righto be accompanied at that meeting. The appeal was heard by Sandra Maughan. She was the Deputy Director of Taskforces and Specialist Compliance and was a more senior manager than Adele Rawlings. The appeal hearing took place on 26 June 2019. The Claimant was again accompanied by his trade union representative. Notes were again taken of that meeting and whilst they are clearly marked as being not a verbatim record neither party identified any material inaccuracies or omissions.

[44]It is clear from the notes that the Claimant was encouraged to work through his grounds of appeal. He argued that the charge levelled against him failed to distinguish between falsification, which could encompass accidentally including false information and deliberate conduct. Turning to the second area of the appeal he was asked what evidence the two colleagues who he says should have been spoken to would have added. He said that one of the colleagues could have verified his involvement in the dry-cleaning example he had given and the other explained his involvement with the Newham Rental investigation. He was asked whether he maintained he was the ‘project lead’ in the light of his earlier concession that he was not. He accepted that ‘this was an embellished statement’.

[45]The Claimant argued that had he been aware of the policy whereby applications are discussed with a manager he would not have submitted the applications he had. He said he would follow that process if re-instated. He then moved on to his mitigating circumstances. After a break the Claimant is recorded as arguing that whether a competency example could be regarded as untrue or simply polished up was a subjective judgment. Overall the Claimant did accept that he had made errors of judgment and recognised the seriousness of his mistakes.

[46]By a letter of 24 July 2019 Sandra Maughan dismissed the Claimant’s appeal. She had completed a ‘deliberation template’. I am satisfied that the reasons that she gave in that document reflect her reasons for dismissing the appeal. In short, her reasons were: 46.1. That she agreed that the Claimant had intended to submit competency examples he knew were M’s work. She relied upon the fact that the cut and paste ‘error’ had been made 4 times in a single application and that the Claimant acknowledged that a further 10 applications had contained M’s examples. 46.2. She did not consider that approaching the two colleagues suggested by the Claimant would have added anything to the evidence. 46.3. She considered that the process had been correctly followed and that the conclusion of Adele Rawlings was one open to her. 46.4. She did not accept that the withdrawal of 10 applications supported the Claimant’s case that he had acted honestly. She noted that that was not mentioned in the earliest meeting on 28 November 2019. She also noted that the Claimant had, for the first time, said in the appeal that he withdrew those applications after a conversation with a colleague. She found that his account had changed and that that went to his credibility. 46.5. She noted that the Claimant had been fasting on 8 May 2019 but she did not consider that any information he omitted was sufficiently pertinent to change the decision. 46.6. Whilst accepting the evidence of the Claimant as to the stressors in his life she concluded that his actions were deliberate and not explained by those factors. 46.7. She considered that the penalty of dismissal was one open to Adele Rawlings and was not one she would interfere with. The law to be applied - Unfair dismissal

[47]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 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.

[48]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

[49]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

[50]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.

[51]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

[52]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

[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

[53]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.

[54]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.

[55]I shall not set out the law relating to compensation as for the reasons set out below I have not dealt with the Respondent’s alternative case in these reasons. Discussion and Conclusions – Unfair dismissal

[56]As set out above, where it is accepted by the employer that the employee has sufficient continuity of service to present a claim of unfair dismissal, and where it is accepted that there was a dismissal, the employer bears the burden of showing that the principal reason for the dismissal was for a potentially fair reason. In the present case The Respondent says that the reasons for the dismissal were those set out in the letter of dismissal and amounted to “conduct”.

[57]I am satisfied that the reason that Adele Rawlings dismissed the Claimant was because she held a genuine belief that he had deliberately used M’s competency examples on his job application. That is a matter expressly described as misconduct in the Respondent’s policy. I consider that it is conduct that impacts upon the employment relationship and I am satisfied that it is capable of falling within the definition of ‘conduct’ found in Sub-section 98(2)(b).

[58]I must therefore go on to consider whether the dismissal was fair or unfair applying the test set out in Section 98(4) of the Employment Rights Act 1996. I shall address first the Claimant’s argument was that the investigation was inadequate. He said that during the investigation he had pointed to two colleagues who he believed could comment positively on whether he had done the work set out in competency examples he had authored. They had not been spoken to. He said that as Adele Rawings had relied upon a finding that he had exaggerated where he had authored the competencies when deciding that he had acted deliberately it could not be said that the evidence was irrelevant and it was unreasonable to fail to speak to these two employees.

[59]I accept that the Claimant did identify two employees as he has suggested. I further accept that Adele Rawlings relied upon a finding that the Claimant’s authored competencies made claims that were untrue. I consider it important to set out what she actually said in her ‘Decision managers – deliberations’ in respect of this. She was addressing the Claimant’s argument that he was obtaining scores of 4 & 5 for his own authored examples and had no need to use M’s to obtain an interview. She wrote: ‘In the evidence, there are details of the scores obtained for 3 applications made during November/December 2017 – of which the score range is 2-5. However, 2 of the applications contain examples for Collaborating and Partnering relating to Newham Rental Scheme taskforce, both Mr Ali and Mr Jethwa (previous managers of Mr Mohammad Rahman) confirm that Mr Rahman did not lead the project or was involved. Mr Rahman has also agreed that he did not lead the project…..Whilst this example is not under investigation for this particular case…….it does bring into question whether Mr Rahman has used incorrect competencies for other jobs....This possibly points to an ongoing approach to including details of competencies which are not Mr Mohammed Rahman’s work, bringing into question his honesty and integrity.’

[60]I accept the Claimant’s point that Adele Rawlings has relied upon her conclusion that he has showed a lack of integrity in relation to his claimed involvement in the Newham Rental Scheme investigation to undermine his assertions that in using M’s examples he did not act dishonestly. That said the passage above shows that the focus of Adele Rawlings thinking was on the Claimant’s claim to have been a ‘Project Lead’. That was something that he had accepted was not the case.

[61]It was not until the appeal that the Claimant suggested that the failure to speak to his two colleagues was unfair. When asked what the two witnesses could add the Claimant said that a colleague RK could have commented upon the work he did connected to the Newham Rental cases. He accepted that his claim to have been the project lead was ‘an embellished statement’. He did go on to claim that he had a significant role in the project.

[62]Both Adele Rawlings and Sandra Maughan considered the question of whether the Claimant’s own authored competencies to be peripheral to the issue they were both invited to decide. That being whether the Claimant had deliberately used M’s examples. The Claimant had accepted that his claim to have been a ‘project lead’ had been ‘embellished’. Given that admission I find that both Adele Rawlings and later Sandra Maugan acted reasonably in not investigating every aspect of the question of whether the Claimant’s own authored competency examples contained exaggerations and following up the suggestion that the two colleagues should be spoken to. They were entitled to rely upon the Claimant’s admission that he was not the project lead and that he had embellished his role. In the context of the example the Claimant gave he either was or was not the ‘project lead’. It was not unreasonable to conclude that his admission that he had ‘embellished’ his involvement impacted upon his credibility generally. Any further investigation would not detract from that conclusion based upon the Claimant’s own admission.

[63]Overall, I am satisfied that the investigation was conducted reasonably (in the sense I identify above). The allegation against the Claimant was that he had used M’s competency examples deliberately, and therefore dishonestly. The other evidence introduced by Amer Ahmed was peripheral to this. Any failure to definitively establish the extent of any exaggeration by the Claimant in his own authored examples had no significant impact on the reasoning or either Adele Rawlings or Sandra Maughan. They both proceeded on the basis of what the Claimant accepted – that he had embellished his own examples. It was not an unreasonable decision to take that matter no further.

[64]The Claimant suggested that the charge against him had not been sufficiently clear. He suggested that it was unclear that it was being suggested that he had acted deliberately. I cannot agree. I find that it was obvious from the outset that the issue that was being examined in the disciplinary process was whether he had intended to deceive when using M’s examples. He knew and understood that and there was no unfairness.

[65]The Claimant’s next argument was that there were no reasonable grounds for concluding that he had acted deliberately. He said that he had given a prompt and frank account of his cut and paste error. He relied upon the fact that he had withdrawn 10 further applications before the matter came to light and he said that he had shown that he had no motive to copy M’s examples as his own were of a sufficient standard to get interviews.

[66]I cannot accept the Claimant’s argument. Both Adele Rawlings and Sandra Maughan placed emphasis on the fact that the Claimant claimed to have made a cut and paste error not once, not just the 4 times in his application for Senior Response Officer but in 10 further applications. I find that it was entirely rational to find that it was inherently unlikely that the same or similar error could have been made time and time again.

[67]Neither Adele Rawlings nor Sandra Maughan considered that the withdrawal of 10 applications containing competency examples that were not the Claimant’s work cast any light on whether they had been used deliberately. Adele Rawlings reached no conclusions about whether the Claimant had withdrawn these applications before he was notified of the disciplinary investigation. However, she did not consider that the fact that they were withdrawn assisted with the issue of whether they were completed fraudulently. I do not believe that to be irrational. A withdrawal could have been because of the discovery of an error or it could have been because of a fear of the matter coming to light. Sandra Maughan took a more robust view. She considered that the Claimant’s account of why he had withdrawn had changed from his first account to his explanation before her that he had withdrawn the applications after a conversation with a colleague. She was correct to say that there was a variation in the Claimant’s account and it was a conclusion open to her that the Claimant was being dishonest about the circumstances surrounding the withdrawal of his applications.

[68]Adele Rawlings did not accept the Claimant’s argument that he had no motive to use M’s scores as he was obtaining reasonable scores with his own examples. She had noted that M had obtained a job whereas the Claimant had not. She accepted the fact that the Claimant had obtained some reasonable scores but placed weight on the fact that in at least one example he had done so by embellishing his account. Sandra Maughan told me that she did not consider that the Claimant was getting good scores. The top grade was 9 and she said that the process was very competitive. I find that there was a reasonable basis for placing little weight on the Claimant’s argument that he had no motive to use M’s scores.

[69]The Claimant argued that too much emphasis had been placed on the fact that there had been a declaration for each application. He said that the process differed in other departments. That said the evidence provided by the Claimant included an acknowledgement that details entered on an application could not be changed once submitted. The process followed at HMRC did include a declaration that the contents of applications were true. I consider that Adele Rawlings and Sandra Maughan were both entitled to assume that the act of submitting an application, whether there was an express declaration or not, amounted to a warranty that the contents of the application are true. An honest person does not need to be told that.

[70]Stepping back and reviewing the entirety of the evidence before Adele Rawlings and Sandra Maughan I am entirely satisfied that there were reasonable grounds for believing the Claimant had acted dishonestly. The shear number of times the Claimant had used competency examples he was not entitled to used provided overwhelming evidence that this was not an accidental cut and paste error.

[71]The Claimant takes one additional point on the procedure follows. He points out that the Respondent’s disciplinary policy requires a disciplinary decision to be communicated by the Decision Maker. He was handed the letter of dismissal by Terri Hannah. I shall proceed on the assumption that the Claimant is right and the letter should have been handed to him by Adele Rawlings. The Claimant suffered no prejudice whatsoever from this. Adele Rawlings would have known that at the time.

[72]The Claimant finally argued that the decision to dismiss him was outside of the band of reasonable responses. In particular, he relies upon the mitigation he put forward and was accepted both by Adele Rawlings and Sandra Maughan. The Claimant had occupied a position where trust and integrity were very important. A conclusion had been reached that he had been dishonest.

[73]Standing back and reviewing the process and the decision as a whole it is impossible for me to say that the decision to dismiss the Claimant was outside of a band of reasonable responses. The process that was followed was fair and extensive if not exhaustive. The decisions that were reached were supported by the evidence. I find that the dismissal was fair.

[74]I have considered whether to make alternative findings dealing with compensation. I am entirely confident in my conclusions set out above. I am conscious that I am invited to act as a primary fact finder in respect of the Claimant’s honesty. This is a reserved decision and if I were to make findings they would be published on the internet. In the circumstances I shall not go any further than to state that the decision that was made was fair both procedurally and substantively. The claim for unfair dismissal is dismissed.