CHIEF CONSTABLE OF HAMPSHIRE CONSTABULARY v MRS C B EASTMAN [2003] UKEAT 0067_03_0205

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 0067_03_0205

Case No Appeal No. EAT/0067/03

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

CHIEF CONSTABLE OF HAMPSHIRE CONSTABULARYAPPELLANT

MRS C B EASTMANRESPONDENT

Before

Mr Justice Wall Mr J Hougham Miss G Mills

Date 2 May 2003

[1]APPEARANCES For the Appellant MR GARY SELF (of Counsel) Instructed by: Hampshire Police Headquarters West Hill Winchester Hampshire SO22 5DB For the Respondent MR R TRANZA (Representative) Instructed by: McDonough & Associates Linburn House 342 Kilburn High Road London NW6 2QJ THE HONOURABLE MR JUSTICE WALL This is the appeal of the Chief Constable of the Hampshire Constabulary against a unanimous decision of the Employment Tribunal held at Southampton. The dates of the hearing before the Tribunal were 1 February, 12, 25 and 26 March and 29 April 2002, when the Tribunal met to discuss its decision.

[2]The application before it was an application by Mrs Carole Barbara Eastman alleging unfair dismissal by the Police, her employer. The Tribunal found unanimously that she had been unfairly dismissed and directed that a hearing should be fixed to deal with issues in relation to remedy.

[3]Unfortunately the Tribunal does not appear to have produced its Summary Reasons until 10 September 2002, which is some four and a half months after the meeting on 29 April 2002 and when subsequently Extended Reasons were requested, these were not promulgated until 5 December 2002. So effectively the period from the date the hearing started to the date the Extended Reasons were promulgated is something in the order of 10 months.

[4]This delay forms part of the Chief Constable's appeal because he says that it is unacceptable and that as a consequence of the delay a number of errors have slipped into both the Tribunal's reasoning and its recollection - something which he submits is inevitable if there are delays of this nature.

[5]On the other side for Mrs. Eastman it is submitted that delays of this length are by no means unknown or indeed unusual and that neither the reasoning of the Tribunal, nor the result is in the event affected.

[6]We think that all we need to say on this particular aspect is that we do of course regret the delay which has occurred, which seems to us lengthy, albeit not exceptional. We have to decide, we think, in looking at this appeal, whether or not we take the view that the Tribunal's judgment has been affected by that delay. That, we think, involves an overall consideration of the appeal as a whole.

[7]The case concerns an allegation by the Police that Mrs Eastman, the Claimant, had disseminated confidential information about a criminal which had seriously compromised a sensitive police operation. Mrs Eastman was employed by the Police as a Research/Consultation Officer. She had begun that employment in May 2000 and worked in what was described as the Best Value Office. She was summarily dismissed from that employment on the ground of gross misconduct on 13 July 2001. At the outset of her employment, she had signed a document acknowledging her duty of confidentiality, and she was also, of course, subject to the Official Secrets Act 1989 .

[8]The Tribunal found that her work required extensive use of the Police's computer system, including access to Criminal Intelligence Management Unit (CIMU) bulletins, which apparently were also available to police officers via public folders.

[9]In March 2001 Detective Chief Inspector David Williams was appointed by the Deputy Chief Constable to carry out a confidential investigation and in early May, in the course of the investigation, DCI Williams came across information which led him to believe that the Applicant had inappropriately passed on to an unidentified third party confidential and sensitive information on the Respondent's computer system. This related to a Mr Derek Saunders who was believed to be a relative of the Applicant, but in the event turned out to be a relative of her former husband.

[10]The source of the information that Mrs. Eastman had allegedly behaved in this way was a registered Police informant. In accordance with common Police practice, and as accepted on all sides during the subsequent enquiry, the informant's anonymity had to be preserved, both in order to protect the personal safety of the informant himself and also to avoid compromising the safety of Police officers and the conduct of future Police investigations.

[11]What is unfortunate and certainly appears slightly puzzling, is that when the Applicant was initially interviewed in relation to these matters she was not told that the information about her had come from a Police informant. We are told that she did not effectively learn that until the formal disciplinary enquiry. In any event, the allegation against her appears to have been that she was suspected of accessing confidential bulletins and indirectly, via an unidentified third party, being responsible for the information in those bulletins being revealed to Mr Saunders.

[12]This case hinges, it seems to us, very largely upon the way the Police went about their investigation into the allegation against Mrs. Eastman. There are a number of criticisms made by the Tribunal in relation to it. The first criticism made by the Tribunal relates to the manner in which the accusation was first put to Mrs Eastman. She was, on 31 May, between 9.00 a.m. and 9.30 a.m., given a letter requiring her to attend for an investigative interview at the offices of the Professional Standards that afternoon with Chief Inspector J Ballard and DCI Williams. The letter indicated that the purpose was to "discuss the possibility that her integrity may have been brought into question by divulging information to unauthorised parties". As it happened, Mrs. Eastman was not going to be available that afternoon. So she was interviewed in the morning. The purpose of the interview taking place abruptly in that manner was, as described by the Police, in order that she would not be given time "to perhaps sit and think about it too long and really to combat any suggestion that you might manufacture some sort of defence to those allegations by speaking to the parties involved."

[13]We have the transcript of the interview in our papers. It is reasonably clear from reading it that Mrs Eastman spent her time answering the questions which were put to her. The actual allegation against her is not put in terms, and it is not until some way into the interview that finally an address is mentioned by DCI Williams which Mrs. Eastman recognises as the address of Mr Saunders. Having recognised that address, she then gives information to DCI Williams about Mr Saunders. She says that she has not seen him for a very substantial length of time; that he was nothing to do with her; he was a second cousin, or something like that of her ex-husband. She agreed that he was always in trouble. She had not seen him, she said, since she was six or seven. She did not think anybody saw him anymore. She knew he was the black sheep of the family; that was not talked about. She was aware that he was always in trouble of one form or another. But she said she did not get that from any information she had from the Police – she got that from the local newspaper when she read it. She denied adamantly ever having talked to anyone about him. Even at relatively recent social occasions when she had seen his mother they had not discussed Mr Saunders at all. That was her position throughout the interview and it reads as though she answers every question as clearly as she can.

[14]As a result of the interview she was suspended. Consequent upon her suspension she wrote a very long letter to DCI Williams dated 7 June in which she goes out of her way to explain at great length her innocence of any wrongdoing. She says that if the allegation has come to light after a telephone call (it has to be remembered she did not know how quite it had emerged) she could guarantee that it was malicious with the sole intent of ensuring that her employment with the Constabulary was terminated. She refers to members of her family in that respect.

[15]She was then left to face the disciplinary hearing which took place on 11 July. Once again we have a note of that hearing. Before it there appear to have been two reports, both of which, in our judgment, indicate the very sparse nature of the case against her. It was noted that the source of the information about her could not be revealed, it coming from the informant. It was noted that the Professional Standards Department's case file contained information to demonstrate the reliability of the source, the informant being quite high on the scale of reliability as far as informers were concerned; that there had been a number of references to Mr Saunders in the CIMU bulletins to which the Applicant, as well it may be said as many, many other Police officers, would have had access; it, refers in our view slightly unfairly to Mrs Eastman eventually volunteering in the interview that she knew that her former husband's aunt, Mrs Carol Saunders, was the mother of Derek; and it concludes with this paragraph which summarises the management's case:

"Having regard to all of the circumstances in this case, it is reasonable to conclude that Mrs Eastman has passed confidential information relating to sensitive police matters to unauthorised parties. Mrs Eastman had every opportunity to commit the alleged act, and although the motive is not clear, it is more likely than not that she has passed this information."

It seems to us, as it seemed to the Tribunal, as we have already stated, that the only evidence against her was the evidence from the informant.

[16]There was also before the disciplinary panel a report from DCI Williams which, if we may say so, seems to us much fairer and more balanced in its approach. He states that the investigating officer during the course of enquiries has caused relevant IT applications to be accessed and no evidence of criminality or inappropriate conduct in respect of Mrs Eastman's use of such systems had been found. He also refers to the fact that Mrs Eastman's line manager, Mrs. Simkin, whilst she had had cause in the past to refer and to criticise Mrs Eastman for trawling through public folders relating to the area in which she lived - and in one instance looking at a vice public folder relating to prostitutes - Mrs Simkin herself said that she did not doubt Mrs Eastman's integrity and did not believe that she would intentionally to disclose information or knowingly do so.

[17]Superintendent Leach, her former line manager, had also stated to the investigating officer that he had no reason to doubt Mrs Eastman's integrity either.

[18]Before we turn to the actual hearing itself and the other criticisms which the Tribunal made of it, it would seem somewhat curious to us that the information which Mrs Eastman is alleged to have passed on would seem to have been available to a very large number of individuals accessing the relevant files through their own computer systems, which we understand required a code word.

[19]One feature of the investigation which greatly troubled the Employment Tribunal, and we respectfully think with some cause, was that when the disciplinary hearing was due to take place (the time-table for the hearing being strictly enforced) Mrs Eastman asked that Mr Gravenor, an Inspector, should represent her at the hearing. He duly did so but in order to ensure that it was proper for him to act, he telephoned a Mrs Jones (who was the Acting Assistant Director of Personnel and who was to sit on the panel itself). The Tribunal recorded that he asked whether he was allowed to act as representative for the Applicant and Mrs Jones confirmed that he was permitted to do so but added "if you are considering acting as advocate for her you should seriously consider your position." On any view, this was a seriously improper for Mrs Jones to have made.

[20]The Tribunal charitably took the view that she was acting in good faith and that other members of the Tribunal were acting in good faith, but plainly a remark of that nature gravely prejudices the impartiality of the Tribunal and gives a clear impression that justice may not be seen to have been done. Furthermore, Mrs Jones visited Mrs Eastman, albeit at Mrs Eastman's request. The Tribunal found that Mrs Jones managed to avoid discussing the case with Mrs Eastman, nonetheless that was plainly a visit which Mrs Jones, in our judgment, should not have made and we agree with the Tribunal's strictures in relation to it.

[21]What really matters, we think in this case, is the criticisms which were made of the Police investigation. Before we go through them shortly, it would be appropriate, we think, to look at section 98 of the Employment Rights Act 1996 to see what the law requires. Section 98 (1) reads: 98 (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." Sub-section 2 (b) identifies conduct of the employee as an appropriate reason for these purposes. It was accepted by the Tribunal, and rightly accepted, that the alleged conduct fell within section 98.

[22]Perhaps the most important aspect then of the section for these purposes is sub-section 4 which provides that: (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." Here there can be no doubt at all that the Police Force not only has the resources to carry out a proper and detailed enquiry but also of course has the expertise to do so. That, in our view is a point of importance in this case.

[23]The last point before going to the disciplinary hearing itself is the letter which Mr Gravenor wrote to Mrs Sheila Smith shortly before the hearing on 8 July. He pointed out that he had agreed to be Mrs Eastman's friend/representative. He had reviewed the papers and it was clear that so much information was being held back that Mrs Eastman was effectively attempting to defend herself with both hands behind her back. He recognised however the difficulties that there were in relation to the information itself, but he pointed out to Mrs Smith that of his own investigations which he had carried out, not only resulted in a denial from Mrs Eastman that she had passed on any information, but that – "Derek Saunders has been in prison since 16 January 2001 and is due to be released in two weeks time in connection with a driving offence. – At no time has she been approached by any member of professional standards or any other police officer in relation to this or any other allegation against Mrs Eastman – Her son, Derek Saunders, similarly has not been approached about this matter. Having heard about the allegations made against Mrs Eastman, she mentioned matters whilst visiting her son in prison on Friday 6 th July. (that is, Mrs Saunders, the mother of Derek). – Until last Wednesday, Mrs Saunders was not aware that Mrs Eastman worked in the police HQ nor what her role was. All she knew was that she worked at a police station in Hampshire. – Mrs Saunders is annoyed at the allegation and the fact that she has been mentioned as part of the evidence. She intended visiting a police station tomorrow to try and ascertain why her name was brought up… – She confirmed that she had spoken to [Mrs Eastman] on the two occasions alleged. Once at a family wedding where they spoke to say goodbye and at a family birth where the sole topic of conversation was the survivability of a premature baby weighing less than 1kg. Mrs Saunders is employed at the Princess Anne Hospital in Southampton, a maternity hospital, and had reason to be there by nature of her employment." And he asked that that information should be available to the panel and taken into account.

[24]Inevitably, the name of the informant was not disclosed, but complaint was made that other information which could have been disclosed, albeit in redacted form, should have been. There are essentially four particular criticisms of the disciplinary enquiry which are made by the Tribunal and perhaps the most significant, and the one which we frankly think is effectively determinative of this appeal, is the criticism of the Police that at no stage did they make proper enquiry as to whether or not Mrs Eastman had in fact called up on her computer the information which she was alleged to have improperly divulged to the third party.

[25]In paragraph 46 of their reasons the Tribunal describes this as a pivotal key issue in the investigation of the case and should have been crucial to the panel's deliberation. Mr Redhead (the Assistant Chief Constable) stated in his evidence in chief that: 46 "…were the decision of the panel exclusively focused on the informant's evidence then, justifiably, natural justice would not have been seen to have been done. However, our adjudication related to a number of other factors which were beyond the indication from the informant that Mrs Eastman had released details of police operations to her cousin." The Tribunal continued:

"The duty to carry out such enquiries on this key issue, and divulge the results to the Applicant, was made all the greater by the fact that much of the remaining evidence relied upon by the panel was withheld from the Applicant. In his interview, DCI Williams did not put to the Applicant that she had obtained the confidential information from her computer. Both Mr Redhead and DCI Williams said in evidence that it was their "understanding" that it was not possible to detect from an IT audit if a computer file had been entered unless the information had been printed out. Inspector Gravenor gave evidence that he believed that is was technically possible to have checked the memory on the Applicant's computer and obtained a list of the files she had accessed. Neither Mr Hopgood nor any other expert was asked by the Respondent to investigate whether the Applicant had accessed the relevant bulletins. The Respondent offered no explanation for this omission. It was a question, the Tribunal concludes, that was crying out to be asked. DCI Williams conceded in evidence that he did not obtain information on this crucial issue; he agreed that it was fundamental and that he should have done. Under cross-examination, Mrs Jones stated initially that she thought that the IT Department had done an investigation to see if the Applicant had accessed the relevant files but, after being referred to Mr Hopgood's report, conceded that she saw no evidence at the disciplinary hearing that the Applicant had done so. 47 The Tribunal concludes from the evidence that the members of the panel had failed to carry out a sufficiently objective and detailed consideration of the evidence against the Applicant. They relied too heavily on the information provided by DCI Williams and the views set out in the management case. The fact that Mr Redhead had, properly, to withhold some confidential information from the panel rendered it even more important that they should scrutinise carefully the rest of the management case against the Applicant."

[26]We have been referred by Mr Self, who appears today for the Appellant, to the recent decision of the Court of Appeal in Sainsbury's Supermarkets Limited v Hitt

[2003] IRLR 23

in support of the general theme which he raises in his Skeleton Argument and in the Notice of Appeal, to the effect that this Tribunal had fallen into the classic trap of substituting its own view of what constituted a proper investigation for the reasonable objective view which the statute and the decisions required. He points to the Sainsbury's case as yet another example of the Court of Appeal identifying this is a trap which is to be avoided.

[27]With great respect we do not think that criticism justified in this case. It is quite clear that what the Tribunal was saying was that the Police had not carried out a proper investigation. One of the obvious things which any reasonable employer would do in the circumstances of this case would be to conduct an audit of the Applicant's computer to decide whether or not she had accessed the relevant information. It was an obvious basic step for any reasonable employer to take which has to be closely examined in the context of section 98 (4).

[28]So was the enquiry the police conducted, in those circumstances, reasonable? The answer, plainly, in these circumstances, is that it was not. Here was an elementary step which should have been taken. It was not. It was seriously unfair to the Applicant not to undertake it in the particular circumstances of the case and to our mind, as well as to the mind of the Tribunal, it effectively vitiates the fairness of the dismissal process.

[29]There are other substantial points which are made in the Tribunal's reasons which we can deal with, we think, without such detail. It is quite clear, in our judgment, that the Police did not investigate Mrs Eastman's defence. That appears from the fact that Mr Gravenor was able to do so easily. The Police should indeed have done so and did not.

[30]The Tribunal pointed to discrepancies between the versions as to whether or not the informant had named the Applicant or given information by which she could be named. We do not feel it necessary to go into that particular debate. It is, we think, sufficient for our purposes to report, as is apparent from the reasons and from the discussion we have had in court today, that really Mrs Eastman was never given a proper indication of the true nature of the case against her and was denied access to information and to documentation which could, in our judgment and in the judgment of the Tribunal, have been disclosed.

[31]Mr Self criticises the Tribunal for saying that documents should have been disclosed in redacted form when they had not seen the documents and did not know whether or not they could have been redacted. That is not a criticism with which we agree. Since much of this information was, it appears, available to police officers accessing the computer, it would seem to us quite possible for particular documentation to have been produced; and if sensitivity was argued, the Applicant was represented by an Inspector in the same force who was a man obviously of clear integrity and the documents could, even in their redacted form, have been shown to him, so that he at least would have been able to conduct the defence, even if he was not entitled to show them to his client and take instructions on them.

[32]We are also very concerned by the conduct of Mrs Jones who appears to have given evidence to the Tribunal that it was "not part of the job of the panel to check the thoroughness of the investigation carried out". The Tribunal comment: 47 "Such a view is fundamentally misconceived. Without a reasonable investigation, there could not be reasonable grounds for the panel's belief in the culpability of the Applicant." And the Tribunal concludes that: 48 "For these reasons, the Tribunal concludes that the investigation in this case was not reasonable and sufficient and that the panel did not have reasonable grounds for their belief, albeit genuine, that the Applicant was guilty of the conduct alleged against her. For that reason, coupled with its findings as to the Respondent's procedural errors, the Tribunal concludes that a reasonable employer would not have dismissed the Applicant at the conclusion of the disciplinary hearing."

[33]In our judgment, that is a very neat and accurate analysis. It manifestly shows that the Tribunal was not seeking to substitute its own views for those of the employer. This case, in our judgment, throws up, yet again, the need for disciplinary systems to be properly carried through and fairly dealt with.

[34]We are clearly concerned, in this appeal, simply to deal with whether or not the Tribunal erred in law. In our judgment, it plainly did not. But out of fairness to Mrs Eastman it does seem to us that in all the documentation we have read there is not one iota of evidence to indicate that she was guilty of compromising a police operation by the inappropriate or improper dissemination of information.

[35]We quite understand that the police do have to protect their informants and it was accepted on Mrs. Eastman's behalf at the Tribunal by her representatives, and her representative indeed at the disciplinary hearing, that the name of the informant could not be disclosed and that information likely to identify him could not be disclosed. However, we agree fully with the Tribunal when it said that that fact made it all the more important that whatever information could be disclosed should be disclosed, and that the real nature of the case against her should be made clear, to enable her to meet it properly.

[36]Manifestly that was not done and in these circumstances we are in no hesitation in dismissing this appeal. We should add, for completeness, that having looked at the appeal in the round, we do not think that the delay in the Tribunal producing its reasons in any way vitiated its reasoning process.