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THE
INDUSTRIAL TRIBUNALS
CASE REF: 01191/08
CLAIMANT: Peter Donnelly
RESPONDENT: Department of Social
Development (Child Maintenance and Enforcement Division)
DECISION
The
unanimous decision of the tribunal is that the claimant was not
unfairly dismissed by the respondent.
Constitution
of Tribunal:
Chairman: Mr
Cross
Panel
Members: Mrs Kelly
Mr
Lyttle
Appearances:
The claimant was represented by Ms
Collins of NIPSA.
The respondent was represented by Mr
Wolfe, Barrister-at-Law instructed by the Departmental Solicitor’s
Office.
Evidence
The
tribunal heard the evidence of the claimant and on behalf of the
respondent from Ms Weir, Ms Gallagher, Ms Orr and Ms Scott.
Findings of Fact
The
claimant was employed as an Administrative Officer in the Child
Maintenance and Enforcement Division office in Antrim. He had been
in the Civil Service working in the child maintenance field since 21
March 1985. His employment ended when he was dismissed on 31 May
2008.
The
claimant had of recent years suffered from alcoholism and as a
result had difficulty in keeping to his work times. He had been
disciplined by the respondent for abuse of the time keeping
regulations in the flexi-time scheme which was operated by the
respondent in its Antrim office. On 29 November 2007 the claimant
was issued with a final written warning by Jayne Weir, of the
respondent’s personnel branch. This was a second incident of
this nature and followed a severe written reprimand given to him on
25 July 2006. The claimant did not appeal these warnings. However,
he did speak to Ms Weir about the alcohol problem and told her that
he had joined the respondent’s welfare scheme dealing with
personal problems. He was at that stage on Stage 2 of the
respondent’s improvement programme in relation to abuse of
alcohol. The final written warning remained valid for 24 months.
The claimant was told, in that warning and at the meeting, that if
any further misconduct should occur in that period, then, he would
be liable to be dismissed.
In
the meantime the claimant had been the subject of what are called
“test checks”, in connection with his use of his office
computer. Because most of his work was done by computer, the
respondent had a safety system in place for checking what
information was being accessed by operatives working with the
computers in the Antrim office. The first test check was dated 19
February 2007 and showed that the claimant had gone into the records
of a Mr Martin McKenna. The claimant stated that he knew Mr McKenna
and assisted him by accessing the computer system to find out his
National Insurance number. A similar test check was triggered by
the claimant on 14 March 2007 when he accessed the computer again
for a Una Edwards. The claimant gave a similar response to
this check.
On
22 March 2007 the claimant was interviewed by Ms Joanne Hanna who
was the line manager of his line manager. This interview arose as a
result of the two test checks. Ms Hanna ends her short interview
note, recording her discussion with the claimant, by stating, “I
informed Peter there would be a full investigation and reminded him
of the seriousness of unauthorised access.”
The
respondent is very strict in its rules concerning access to records
in the system. Personnel are only authorised to access records of
people who are subjects of the work of the office. Strict licensing
and privacy considerations and the Data Protection Act are the
reasons for these strict rules. When a report came through to Mr
Glass, the respondent’s financial controller, concerning the
two test checks on the claimant’s computer, he asked the
respondent’s internal security unit to conduct a full
investigation. This showed that the claimant had conducted 35
unauthorised accesses between January and March 2007. Even after he
had received the warning of the danger of unauthorised access from
Ms Hanna on 22 March, the claimant continued to access the computer
for non authorised purposes. The report of the security unit
recorded 82 unauthorised accesses to the accounts of 33 people
between January and October 2007.
The
claimant was interviewed by the investigating officer carrying out
the internal security investigation, on 21 January 2008. Although
the claimant admitted a number of the access occasions, he was
uncertain about 17 of the named customers. He said that he
sometimes left his computer on when he was away from his desk and
others could have used it, as others in the office knew his
password. However the investigators noted that this was a small
office and the claimant’s desk could be seen by the managers
and it was unlikely that the computer had been accessed by others.
The claimant made no further unauthorised access after he heard that
an investigation was ongoing on 7 January 2008.
On
18 March 2008, Ms Jayne Weir, the respondent’s discipline
officer in the HR Department, issued a letter to the claimant. It
stated that the respondent viewed the unauthorised access of the
computer system by the claimant as gross misconduct and that she
would hold a disciplinary meeting on 11 April. This she did and
after a lengthy hearing Ms Weir recommended that the claimant should
be dismissed from his post. She stated, that whilst the final
written warning had been given to the claimant after the vast
majority of the accesses, had occurred, she felt that dismissal was
appropriate, as with his seniority he would have known that what he
was doing was forbidden and that he should have taken that into
account. Not least, as he was under a formal written warning of
November 2006 and then the final written warning in November 2007.
Ms
Weir was not of sufficient seniority to dismiss the claimant. She
had to make her report to Ms Gallagher. Ms Gallagher made her
decision after looking at the internal security unit’s report
and the recommendation of Ms Weir. Ms Gallagher decided that the
claimant’s conduct, in the circumstances of the live final
written warning, was such as to warrant dismissal with immediate
effect. The claimant appealed the decision to dismiss and the
appeal was heard by Ms Andrea Orr the respondent’s Resource
Director on 10 July 2008. The claimant appeared at this hearing
with Ms Collins his NIPSA representative. The appeal was
unsuccessful.
The final appeal open to the claimant
was an appeal to the Civil Service Appeal Board, which was heard on
21 November 2008 and again the claimant was in attendance with Ms
Collins and again it was unsuccessful.
As
mentioned above the claimant was receiving help, from the
respondent’s personnel branch, with his alcohol abuse problem.
The tribunal was furnished with a copy of the Civil Service
circular 7/03 which sets out the current guidelines for dealing with
this problem. The tribunal heard the evidence of Ms Weir,
Ms Gallagher and Ms Orr, as to their knowledge of this problem
in relation to the claimant. They were all aware that the claimant
was in the habit of going into a certain public house in Antrim
during his lunch time. It was in this pub that the claimant met
people who prevailed upon him to access the computer system to
obtain the pieces of information which they required. There was no
suggestion that the claimant was benefiting financially in this
breach of the respondent’s rules.
The
circular 7/03 gave advice in Annex B, to managers, who were faced
with dealing with members of staff with drink problems. Most of the
advice given in the circular dealt with day to day issues in dealing
with such employees. However there were some points to be observed
by managers dealing with disciplinary matters. For instance
paragraph 22 states, “It will not usually be appropriate to
take severe disciplinary action, particularly for a first offence”.
It goes on to advise that the welfare officer should be alerted.
In this case the welfare officer had been involved with the claimant
from 2006 and the claimant referred to the officer’s
assistance in his written statement, in answer to the charge of
abusing the flexible working arrangements in July 2006.
The
tribunal only became aware of the circular 7/03 during the course of
the closing submissions in the case. The tribunal felt that the
circular was a document that might have an important bearing on the
case and therefore asked the respondent and the claimant to give
evidence concerning it. The claimant gave frank evidence of his
problem with alcoholism and the respondent’s three witnesses,
who had handled the disciplinary and appeal process, were recalled
and dealt with the impact of the circular on their conduct of the
disciplinary process. Ms Scott gave evidence as to how the Welfare
Department helped employees with personal problems.
The
claimant was working under a contract of employment, which, in its
disciplinary section set out examples of behaviour that might lead
to dismissal for gross misconduct. Amongst these examples is “any
wrongful or unauthorised access to IT systems or other breach of IT
security.”
The Law
Article
130 of the Employment Rights (Northern Ireland) Order 1996,
(hereinafter “the Order”), states that in determining
whether an employee is fairly or unfairly dismissed, it is for the
employer to show to a tribunal the reason for the dismissal and to
prove on the balance of probabilities that the reason falls within a
group of reasons that would justify the dismissal of the employee.
One of these listed reasons, that can justify dismissal, is the
conduct of the employee. Once the employer has proved that the
reason for the dismissal falls within this heading of conduct, the
tribunal must determine the question of whether the dismissal is
fair or unfair, by deciding whether “the employer acted
reasonably or unreasonably, in treating it as a sufficient reason
for dismissing the employee”, (Article 130 (4) (a)). Article
130(4) (b) of the Order states that this question of reasonableness
“shall be determined in accordance with equity and the
substantial merits of the case.”
The
tribunal must not, in considering the fairness or otherwise of the
respondent’s conduct, substitute the respondent’s view
of how the disciplinary process should be handled, with its own
view. There is a string of decisions, mostly from England, which
lay down this principal. The most important of them is possibly the
decision in Iceland
Frozen Foods v Jones [1982] IRLR 439,
which stated, that a tribunal in deciding whether the dismissal is
fair under Article 130(4) must consider the reasonableness of the
respondent’s conduct. In judging the reasonableness of that
conduct the tribunal must not substitute its own decision, as to
what was the right course for the respondent to adopt, for that of
the respondent.
The
most recent decision on this point is that of the English Court of
Appeal in London
Ambulance Service NHS Trust v Small [2009] EWCA Civ 220.
In which the Court held that the tribunal should have confined its
considerations of the facts, to the facts relating to the Trust’s
handling of the dismissal and not made its own findings as to
matters which were in dispute in the internal proceedings.
The
Iceland Frozen Foods judgment then states that the tribunal must
then decide whether the decision of the employer to dismiss an
employee, falls within a band of reasonable responses, which a
reasonable employer might make if faced with such a disciplinary
matter. The band of responses may stretch from dismissal to a final
written warning and a tribunal may be equally justified in deciding
that either is appropriate to the case being heard.
The
claimant in this case was working under a contract of employment
which gave the respondent a right to dismiss in respect of an
employee’s gross misconduct.
Decision
19 The
tribunal spent a considerable time in looking at the circular 7/03
referred to above, which dealt with the handling of employees
suffering from problems with alcohol. If it had not been for this
aspect of the case, the tribunal would have had less difficulty in
reaching its decision. The claimant was, at the time of the offence
concerning the unauthorised access to the computer details of people
who were not clients, still under the effect of a final written
warning. The warning was specific in stating that any further
disciplinary matter that was laid against him and upheld could result
in his dismissal. It would therefore be difficult for the tribunal
to say that dismissal in those circumstances was not within the band
of reasonable responses of a fair employer looking at all the
factors.
20 The
tribunal considered that the circular had however been taken into
account by the respondent’s officers in their dealings with the
claimant. Ms Weir gave evidence of her knowledge of the claimant’s
referral to the Welfare Department. She did however consider
referral and the discussions that the claimant had with Ms Scott of
the Department as confidential to him. He did not choose to raise
the matter in connection with the final disciplinary matter of the
unauthorised accesses, Ms Weir felt that the circular and the advice
therein was chiefly for the line managers and did not greatly impinge
on disciplinary matters of the type involved in this case. The
tribunal agree with this reading of the circular. The claimant in
answering Ms Weir’s questions, at her investigation of the
matter, stated that he wanted to bring his drinking to her attention
but not with the intention of excusing the accesses.
21 Ms
Gallagher was if anything stronger on the alcohol aspect of the case.
She stated that she reached her decision to dismiss on the evidence
provided by Ms Weir and that it would have been for the claimant
to have raised the problem and his treatment by the Welfare
Department, if he wanted to rely on it as an excuse for his conduct.
Her view of the matter was that problems of this kind were
confidential to the employee and the welfare officer concerned and
could only be the subject of discussion in a disciplinary forum if
the employee raised the matter first and authorised the welfare
officer to disclose information to the officer dealing with the
disciplinary process.
22 The
internal appeal was heard by Ms Orr, who mentioned the addiction
problem in the context of the earlier flexi-time final warning and
the fact that that warning was not appealed. The argument put to her
was, that if this final warning had been appealed and overturned,
then the present misconduct of the access to the computer system
would not have led to a dismissal. The alcohol problem was not an
excuse for the appeal before her and she felt that the argument of
the failure to appeal was too remote to be relevant to the appeal
before her. She was however aware of the policy and the fact that
the claimant had undergone treatment with the Welfare Department.
23 The
tribunal, in reaching its decision, took into account the seriousness
with which the respondent viewed the misuse of the computer system.
The offence was listed as gross misconduct in the disciplinary code
and the respondent had set up the test check system to detect
breaches of the computer rules. Team time sessions with the staff
were used to reinforce the seriousness of the matter. Finally the
claimant had been warned by Joanne Hanna on 22 March 2007 as to his
breach of this rule yet he continued to access the computer for non
work reasons.
24 The
tribunal also considered the fact that the claimant had a very long
record of service with the respondent and its predecessors. However
the offence was of such a serious nature that the claimant’s
seniority should have been of assistance in preventing him from
breaking the rules on so many occasions, especially after he had
received a specific warning from a superior officer.
25 Taking
account of all these facts and the legal principals set out above,
the tribunal hold that the respondent had satisfied the test laid
down in Iceland Frozen Foods. The decision to dismiss did fall
within the band of reasonable responses that an employer might adopt,
if faced with an employee’s conduct of this type. The
dismissal of the claimant is therefore fair and his claim is
dismissed.
Chairman:
Date
and place of hearing: 2-6 March 2009 and 13 March 2009, Belfast.
Date
decision recorded in register and issued to parties:
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