MISS W L PICKERSGILL v EMPLOYMENT SERVICE [2001] UKEAT 0263_01_2407

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0263_01_2407Case No Appeal No. EAT/0263/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS W L PICKERSGILLAPPELLANTEMPLOYMENT SERVICERESPONDENT
Before
His Honour Judge Peter Clark Mr R Thomson Mr K M YoungDate 24 July 2001
[1]APPEARANCES For the Appellant MR COLIN NASIR (Solicitor) Messrs Linklaters & Alliance Solicitors 1 Silk Street London EC2Y 8HQ JUDGE PETER CLARK By an Originating Application presented to the London South Employment Tribunal and dated 19 November 1999, the Appellant, Miss Pickersgill complained of unfair dismissal and disability discrimination by the Respondent, the Employment Service, by whom she had been employed as an Administration Officer at the Lewisham Job Centre from May 1991 until her dismissal on 23 August 1999. The claims were resisted.[2]The complaint came before an Employment Tribunal chaired by Mr I MacInnes on 1 November 2000. The Appellant was then represented by her Solicitor, Mr Nasir.[3]The complaint of disability discrimination had earlier been withdrawn and was dismissed. As to the complaint of unfair dismissal the Respondent put forward two separate matters relating to the Appellant's conduct as forming the reason for dismissal, that reason relating to her conduct, being a potentially fair reason for dismissal.[4]The first matter concerned the Appellant signifying that she had known an applicant for a passport for 3½ years, when he had only been in the country for 1 year, using the office stamp. The second concerned some 70 occasions when unauthorised access had been gained to the Respondent's computer system using the Appellant's Personal Identification Number (PID).[5]By a decision with summary reasons only, promulgated on 30 November 2000, the Tribunal found that the Respondent's reason for dismissal related to her conduct and considered the question of reasonableness under Section 98(4) of the Employment Rights Act 1996 .[6]They found:(1) That the Respondent had not carried out a reasonable investigation into the passport issue, so that dismissal on that ground was not reasonable, but that;(2) The dismissing officer, Mr Davey, genuinely believed the Appellant guilty of unauthorised access to the Respondent's computer system; that he had reasonable grounds for that belief and he had carried out a reasonable investigation.[7]The Respondent had carried out a fair procedure in reaching the reason to dismiss on this ground. All staff were aware, from the Respondent's Code of Conduct, that unauthorised access to the computer system was regarded by the Respondent as serious misconduct for which dismissal was the usual penalty.[8]The Employment Tribunal added (perhaps having in mind the EAT decision in Denco Ltd v Johnson [1991] ICR 172) that computer security is a very serious matter for all employers and particularly for this Respondent, bearing in mind the nature of the information contained in its system. The issue of what use, if any, the Appellant made of the information gained from such access was irrelevant. Dismissal for this offence, only, fell within the range of reasonable responses open to the employer.[9]We should add that, as part of the investigation carried out by the Respondent, the Appellant denied having made the unauthorised access alleged, whilst maintaining that she had not divulged her PID to anyone else.[10]The Appellant commenced this appeal by a Notice dated 11 January 2001, signed by her solicitors. Attached to that Notice was a copy of the Tribunal's decision with summary reasons only. No request had been made to the Employment Tribunal for extended reasons. This omission was pointed out, by reference to the requirement in Rule 3(1)(c) of the Employment Appeal Tribunal Rules 1993 for extended reasons to be lodged with the Notice of Appeal, by letter from the Deputy Registrar dated 25 January 2001.[11]On 20 February 2001 Mr Nasir responded, saying that his application for extended reasons had been refused by the Employment Tribunal Chairman, on the grounds that it was made out of time. That decision would not be appealed; instead the Appellant would invite us to exercise our discretion under Rule 39(2) to hear the substantive appeal on the basis of summary reasons only. Wolesley Centres Ltd v Simmons [1994] ICR 503.[12]In order to consider that application, renewed before us today, it is first necessary to look at the way in which the appeal is put. It seems to us, having heard Mr Nasir's submissions, that there are potentially two points which arise for consideration.[13]The first is a submission that in setting out the Respondent's Rules of Conduct, at paragraph 5(iv) of their reasons, the Tribunal have misquoted those Rules and in one respect produced a version which does not appear from the Rules themselves. Secondly, that at paragraph 6(ii) of the reasons the Tribunal were wrong to regard the issue of the use, if any, to which the Appellant put the information gained from unauthorised access, as being irrelevant.[14]Dealing with those submissions in turn. We have been provided with a copy of the Respondent's Rules of Conduct. The first point that is taken is that the quotation:
"We regard breaches of computer security as serious or gross misconduct."
Is incomplete. The full text taken from paragraph 24 of the document reads:
"We regard breaches of computer security as serious or gross misconduct which, depending on circumstances, can lead to dismissal."
In our judgment, the omission of those final words is immaterial for the purpose of this case.[15]More substantially Mr Nasir draws attention to the next quotation in the Tribunal's reasons, which reads as follows:
"Unauthorised access to the computer system is regarded by the Respondent as serious misconduct for which dismissal is the usual penalty. All the Respondent's staff are aware of this."
Mr Nasir submits that such a passage does not appear in those terms within the document. That appears to be correct. However, we note the reference under 'Chapter 02 – Discipline' to paragraph 10, 'Serious Misconduct'.[16]That reads, so far as is material:
"Serious misconduct can include repeated minor offences as outlined above. Other examples are: …..unauthorised access to information held, or software used, on computers, computer systems or using unauthorised software"
[17]The discipline code then goes on to deal with 'Gross Misconduct' and under paragraph 11 provides, as an example of gross misconduct:
"…unauthorised access to information held, or software used, on computers or computer systems with intent to commit, or facilitate the commission of, further offences, for example using information to harass people, using information against an individual for personal gain/advantage, passing information onto third parties, committing fraud or introducing a virus or modifying computer material…"
[18]We note that the Tribunal approached this case, as did the Respondent, on the basis that this was serious misconduct and not gross misconduct, as defined in the Respondent's own disciplinary rules. To that extent, the question of the use to which the unauthorised access was to be put was indeed irrelevant on the face of the Respondent's Rules, to the offence of serious misconduct, as compared with that of gross misconduct.[19]Returning to the quotation, or misquotation, appearing in paragraph 5(iv) of the Tribunal's reasons, we think that this demonstrates the difficulty of permitting cases to proceed on the basis of summary reasons only. It seems to us that the passage cited is an amalgam of the provision for serious misconduct in the Respondent's disciplinary code and, it would seem, evidence that was given to the Tribunal orally as to the usual penalty for such serious misconduct.[20]It would be quite wrong, in our judgment, to allow this appeal to proceed on the basis of summary reasons only, where the nature of the point taken is one which could have been remedied by extended reasons, tidying up the detail of the summary reasons already given.[21]In these circumstances we shall not exercise our discretion to allow this appeal to proceed on the basis of summary reasons only and there being no appeal against the Chairman's refusal to provide extended reasons out of time, the appeal must be dismissed at this preliminary hearing stage.