Mrs P Rainbird v Secretary of State for Work and Pensions: 6018610/2024
EMPLOYMENT TRIBUNALS
Case No 6018610/2024
Between
Mrs P RainbirdClaimantSecretary of State for Work and PensionsRespondent
Before
Employment Judge E. Misra KCMr. C Moore (instructed by Counsel) for claimantMr. S Tibbitts (instructed by Counsel) for respondentDate 26 June 2025
JUDGMENT
[1]The complaint of unfair dismissal is not well founded and is dismissed.[2]The complaint of wrongful dismissal is not well founded and is dismissed.
REASONS
[1]The Claimant requested written reasons for the judgment of the Tribunal sent to the parties on 1 July 2025 oral reasons having been given at the hearing itself. That request was made by the Claimant in time but was not communicated to the judge until late August 2025 during which time she was on annual leave. There has therefore been a short delay before these reasons could be sent to the parties.[2]The judgment of the Tribunal was that the claims of unfair dismissal and wrongful dismissal were not well founded and were dismissed.[3]The Claimant brought two claims against the Respondent; one of unfair dismissal contrary to s.94 Employment Rights Act 1996 and one for wrongful dismissal i.e., for breach of contract for summarily dismissing her without giving or paying notice. Those complaints were brought in time and the Claimant had sufficient continuous service such that no jurisdictional issues arose for determination in the case.[4]The parties helpfully agreed a List of Issues which was available to the Tribunal at the start of the hearing and to which it paid careful regard.[5]Having had in mind the evidence of the Claimant and of the three witnesses called by the Respondent to give evidence namely Mr. Stuart Chapman (Investigating Officer), Mrs. Dawn Fountain (Dismissing Officer) and Ms Lauren Philips (Appeal Officer) and the documents in the agreed bundle as brought to the Tribunal’s attention, the facts were found to be as follows. The Facts:[6]The Respondent is the Secretary of State for Work and Pensions and has overall responsibility for the Department of Work and Pensions (or ‘DWP’). This is a large Ministerial Governmental Department responsible for welfare, pensions and child maintenance policy, including the administration of social security benefits such as Universal Credit.[7]The DWP necessarily collects, processes and retains highly sensitive personal data for millions of people and it is at pains to emphasise in its policies, processes and training of staff that its employees must not access, use or process this data other than in line with its policies.[8]The Claimant was employed by the Respondent from 2 August 2021 to 30 August 2024 when she was dismissed summarily for gross misconduct for accessing, without a legitimate business need appropriate to her role, the Universal Credit Account of a woman with the same surname as her on four occasions; twice on 6 February 2024 and twice on 1 March 2024. At the time of the dismissal, which was admitted, the Claimant was a Team Leader supervising approximately a dozen Case Managers; she and her team were primarily responsible for Universal Credit cases in the Stratford area.[9]The Claimant had an unblemished record of service until she was issued with a Final Written Warning on 10 May 2023 for accessing the DWP records of her son without authority / any legitimate business reason for doing so. Her explanation at the time was that she was acting on autopilot when she accessed the records ten times over the relevant period, that she was going through difficult personal circumstances and that her intention was to assist her son’s wellbeing and ensuring he attended certain appointments. She did not deny her actions but supplied mitigation which was, on that occasion, deemed sufficient to issue her with a Final Written Warning (‘FWW’) which remained live at the time of the dismissal which was the subject of these proceedings.[10]After receiving the FWW, the Claimant did not access any of the support services available to her through work, such as PAM Assist, or engage with her Line Manager for support and accepts that, to the extent that she had any health or related issues, she did not share them at any time thereafter, up to and including the time of her disciplinary hearing and eventual dismissal, or on appeal.[11]On 5 February 2024, a Universal Credit Account (‘UCA’) claimant sharing the same surname as the Claimant, made contact with one of the Respondent’s telephone agents and raised a query about an underpayment. This appeared to be related to a concern she had about housing service charges. The telephone agent logged this to the system sending an email to a shared email inbox for the Basildon Universal Credit Service Centre to which the Claimant did not have access. The task was to contact the benefits claimant regarding the payment issue by 6pm on 6 February 2024 having checked her Journal and History for information. The Case Manager was recorded as being Ms Priya Sungkoora. The Team Leader for that centre was in work on that date and the Claimant did not have any allocated or special responsibility for the Case Manager, the UCA holder, the Chelmsford team or anything else with a clear or particular link to this UCA holder. There were two members of staff who were responsible for handovers that week; neither of whom was the Claimant.[12]The Respondent has systems in place to monitor for inappropriate or unauthorised use of its data systems and on 9 July 2024 an Internal Abuse Monitoring Report was issued showing that the Claimant had searched the UCA system and accessed and viewed a claim for an account holder whose surname was Rainbird by using the name as a search entry and doing so again a few minutes later. The same claim was searched by name and accessed and viewed again on 1 March 2024 again with an initial search and access and another one a few minutes later. This was brought to the attention of relevant personnel and it was Mr. Stuart Chapman who was asked to carry out an investigation which was commenced on 11 July 2024. The Claimant had previously worked with Mr. Chapman and did not pursue any allegation that he was biased or should have recused himself for some other reason. The Claimant said she felt a false sense of security because of her previous good working relationship with him and initially reacted to the letter of 11 July 2024 inviting her to a disciplinary investigation for a potential breach of information security which could amount to gross misconduct by laughing. She has maintained throughout that she did not know the UCA holder who shared her name; in short that this was pure coincidence and there was no connection that would prevent her from accessing information on that person’s account. Mr. Chapman was senior to the Claimant and line managed Team Leaders.[13]Mr Chapman met with the Claimant on 22 July 2024 to ask her about her access to the UCA holder’s claim on 6 February 2024 and 1 March 2024. The Claimant accepted that it was proper to instigate an investigation and the Respondent had to do so, but said that it was hard for her to provide an explanation some five months later as she had no recollection at all and had made no notes on the system when she accessed it on any of the four occasions that she did, or any other information to enable her to explain why she had accessed the claim.[14]After her interview, the Claimant sent an email to Mr. Chapman the next day confirming she had checked her emails for the dates in question and could not find anything relevant but had found a Teams chat with a Chelmsford Case Manager called Mosunmola Balogun but stated that as all Teams chats were deleted after a month, “there is no information that would be helpful to us”. She asked who the Chelmsford Team Leader was at the time, to which she received a reply just a couple of minutes later saying it was someone called Wade. To that, the Claimant responded that she had quite a close working relationship with Wade but she still did not remember the UCA holder claim in question. On 23 July 2024, the Claimant sent another email pondering whether she might have been on the site handover inbox on the dates in question which could explain why she accessed the claim if there was no Case Manager mentioned on the handover. The team responsible for the UCA holder’s claim were not in the same line of management as the Claimant and did not work in the same area.[15]Mr. Chapman checked and the site handover inbox message of 5 February had not even been opened (as at the date of 25 July 2024), did not use the surname in question, and did name the Case Manager as already described. He also ascertained that that email remained unactioned. An escalation email had been sent on 7 February after further contact from the UCA holder that day, prompting the named Case Manager to take action, again on the same day.[16]There was no action or activity on the account on 6 February or on 1 March 2024.[17]With the exception of the emails sent shortly after the disciplinary investigation meeting, which amounted to speculation on the Claimant’s part, the Claimant could not proffer any explanation whatsoever as to why she had accessed Ms Rainbird’s claim on those two dates claiming she could not remember anything at all, not even given the coincidence of their unusual surnames being the same.[18]The Claimant did not think it prudent to tell her line manager about the access despite the FWW she had on her record and the fact that the UCA holder had the same unusual surname and was not someone whose account would normally be dealt with by the Stratford team. With hindsight she agreed she should have done so.[19]Mr. Chapman accepted he had no evidence of a family or other connection between the Claimant and Ms Rainbird, which is why, as he described in his report, this led him to explore why the Claimant had accessed the claim and whether she had a legitimate business need to do so. This mirrored the requirements of the Respondent’s policies insofar as access was completely forbidden in respect of someone with whom employee had a connection and permitted in all other cases only where authorised and in line with legitimate business need having regard to the employee’s role. The Claimant was authorised to access UCA holder accounts in general but only allowed to do so where there was a legitimate business need. Idle curiosity or browsing someone’s records for personal interest to use an obvious example were wholly outside the policy.[20]Thus the entire issue turned on whether, under the Respondent’s Disciplinary Policy & Procedure, and in particular the dedicated section on how to deal with breaches of information security (p.299 and p.302-303), the Claimant had accessed UCA holder data without a legitimate business reason for doing so.[21]Mr. Chapman concluded there was a case to answer for potential gross misconduct and a disciplinary hearing was convened and took place on 23 August 2024 at which hearing the Claimant was represented by her union, PCS. The investigation report was shared with the Claimant well in advance of the hearing which was conducted by Mrs. Dawn Fountain. The Claimant broadly accepted the contents of the investigation report and maintained her position that she could offer no explanation or reason as to why she had accessed the UCA holder’s claim on four occasions, or indeed any, must surmised she must have had some unspecified reason.[22]The Claimant did not ask for anyone else to be interviewed or ask for any other documents to be considered or searches to be conducted. She referred to some personal issues during the hearing which Mrs. Fountain took into account when arriving at her decision to dismiss the Claimant for gross misconduct for breaching the Respondent’s Acceptable Use Policy and accessing data without a legitimate business need appropriate to her role. The Respondent’s disciplinary policy suggested that where an employee had accessed records multiple times without such a need this would ordinarily be treated as gross misconduct and the possible indicative outcomes were dismissal or a FWW if there was some reasonable explanation. After seeking HR advice, but making the decision on her own, Mrs. Fountain dismissed the Claimant with effect from 30 August 2024 i.e., summarily, for the reasons set out in the letter.[23]The Claimant appealed the decision as set out in the appeal grounds at p.107 to 115 of the bundle which appeal was then heard by Ms Lauren Philips who carried out some further enquiries before the hearing on 20 September 2024 including by contacting the Claimant’s line manager and also by seeking to establish why Mr. Chapman had been appointed as the investigating officer. It was due to his experience in investigating and his experience of working in a service centre.[24]The Claimant was also represented by her union at the appeal hearing.[25]After this hearing, Ms Philips contacted Mrs. Fountain to clarify if she had considered any mitigating factors, which she confirmed in writing she had in a series of bullet point notes. Ms Philips ultimately decided not to uphold the appeal. The Law:[26]The Tribunal reminded itself of the statutory language contained in sections 94 and 98 Employment Rights Act 1996 and in particular of the well-known authorities: British Home Stores Ltd v Burchell [1980] ICR 303, EAT and Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23.[27]The Tribunal also had regard to the submissions made by the parties and reminded itself of all of the authorities referred to by them.[28]There is no substitute for the language of the statute itself.[29]In considering whether the Respondent dismissed the Claimant fairly or otherwise, it being agreed that the dismissal was for a potentially fair reason (conduct), the Employment Tribunal must not substitute its decision for that of the employer. Its role is to review the decision taken in light of the information before the employer and the steps it has taken to investigate and consider the issue at hand.[30]The Tribunal did not consider that it was correct that an employer is obliged to ‘leave no stone unturned’ in an investigation, but it must carry out one that is reasonable in all the circumstances and the process must overall fall within a band of reasonable processes open to an employer in the same way as the decision must fall within such a band. That way the law affords the Tribunal the ability to scrutinise but not to merely rubberstamp the actions of the employer, gives the employer the appropriate margin within which to act, and comes back to the overarching question embedded in the language of sub-section 98(4) Employment Rights Act 1996 which is the balance that Parliament has struck in this regard.[31]In respect of wrongful dismissal, the Tribunal must assess objectively itself whether the Claimant was in repudiatory breach of the contract of employment entitling the Respondent to dismiss her without notice. Conclusions (applying the facts to the law): Unfair dismissal[32]The reason for the dismissal was conduct. This is a potentially fair reason.[33]The Respondent acted reasonably in the circumstances in treating it as sufficient reason for the dismissal in the context of the importance with which it treats data / information security as expressed in its policies and procedures and emphasises the need for staff to acknowledge acceptance of them each time they log in. The Claimant was potentially privy to large swathes of personal and sensitive data and the gravity of any information security breach was clear to her as well.[34]The Claimant provided no cogent explanation for her actions.[35]The Respondent held a genuine belief in the Claimant having done the conduct in question after conducting a reasonable investigation in all of the circumstances. It was understandable to look to the Claimant as the key person who could provide an explanation as to why she accessed the records. She could not.[36]The dismissal was plainly within a band of reasonable responses open to the employer given its policies and the gravity of data breaches as understood by the Claimant herself and given the existence of the FWW which remained live at the time and related to a data security breach as well.[37]The Claimant was not really able to point to a failure by the Respondent to follow a fair procedure in the round, which the Tribunal found that it did including a proportionate and fair investigation, a disciplinary hearing at which the Claimant was fully heard and the right of appeal which was exercised but did not result in any material or meaningful new evidence being raised or in the overturning of the original decision by reason of any procedural defect. The Tribunal found that each of the decision makers in the disciplinary and appeal hearings was fair and openminded. Wrongful dismissal:[38]On a balance of probabilities, having regard to the facts as found, the Claimant accessed without legitimate business need the records of the UCA holder who shared her surname. There was simply no evidence of a legitimate business need before the Tribunal at all and the evidence especially at p.409-410 pointed away from there being such need as supported by the investigation report in particular. Therefore the Respondent entitled to summarily dismiss the Claimant for gross misconduct.