EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: S/100451/10 5 Held in Glasgow on 19, 20 & 21 October 2010 Employment Judge: Members:

Emma Bell Mr R McPherson Mr J Burnett

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Mr K J Anderson 44 Gowanbrae Drive Dunfermline Fife KY12 7RL

Claimant Represented by: Mr Matheson-Dear Solicitor

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Avance Group Limited 1C Station Parade Beaconsfield Buckinghamshire HP92PB REASONS introduction

Respondent Neither present Nor represented

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1. The claimant was employed by the respondent as a network manager from 17 June 2002 to 14 October 2009, when he was dismissed by reason of gross misconduct. The claimant makes a claim of unfair dismissal. The respondents deny that they unfairly dismissed the claimant. 2. The Issues 2. The issues for the Tribunal were:2.1.1 Whether or not the respondents' dismissal of the claimant was fair?

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2.1.2 What financial award or compensation if any, is to the claimant? 3. 45 The Hearing

3.1 The case was set down to be heard on 19, 20, 21 and 22 October 2010. Both the claimant and the respondents had been notified of the hearing dates. The hearing was convened at 10 am on 19 October when the respondents failed to appear or be represented. The Hearing was adjourned until 12.30 pm to allow efforts to be made to ascertain the whereabouts of the respondents. The clerk
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made telephone calls to Rhona MacLellan, HR Consultant and to Ian Carrell, Chief Executive Officer of the respondents. The clerk was unable to reach Mr Carrell though left a message on his voicemail. The clerk spoke with Rhona MacLellan, who confirmed that she had advised Mr Carrell of the date, time and location of the Hearing. A fax was sent to Mr Carrell advising him that the Hearing would proceed in the absence of the respondents and asking him to make contact with the Employment Tribunal office. When the Hearing was reconvened at 12.30 pm, by which point Mr Carrell had failed to make contact with the Tribunal office, it was decided by the Employment Tribunal to discharge the hearing and to reconvene at 10 am on 20 October in order that further efforts may be made to contact Mr Carrell. 3.2 A further fax was sent to Mr Carrell on the afternoon of 19 October advising him that the hearing would be reconvened at 10 am on 20 October and asking him to make contact with the Employment Tribunal office. Contact was eventually made on behalf of the respondent, from which it was clear that the respondent was not intending to attend or be represented at the full hearing. Accordingly the full hearing proceeded at 10 am on 20 October in the absence of the respondent. 3.3 The respondent is Avance Group Limited.

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3.4 The Employment Tribunal heard evidence from the claimant, on his own behalf.
25 3.5 4. The claimant lodged an inventory of productions running to 19 documents. Findings of Fact

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4.1 The claimant is Kenneth James Anderson who is 36 years of age. The claimant was previously employed as a network IT manager with the respondent. 4.2 The respondent was previously part of the Buchanan Clark and Wells Group. The claimant's employment with the respondent began on 17 June 2002 and ended on 14 October 2009. The business of the respondent is as an outsourcer of Rentcall Centre Services to clients. 4.3 In carrying out his role as network IT Manager, the claimant was based at home and worked 371/4 hours per week on salary of 45,320 per annum. That was a salary which applied as at the date of termination. The claimant also enjoyed the

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f o l l o w i n g benefits w i t h the respondents:-

A pension with Aegon, private medical insurance with BUPA and a car allowance of 4,200 per annum, reference to which was made in the claimant's payslip. 45 4.4 The respondent's internet policy applied to the claimant's employment and the policy was contained at C2/1 to C2/8 of the inventory of productions. 4.5 The claimant was effectively in charge of the respondent's IT network. The respondent has offices in Glasgow, Rutherglen, Beaconfield and Leeds. In his role the claimant initially reported to Campbell Mitchelson, IT Director.

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4.6 In early 2009 most of the directors on the Board of the respondents resigned and were subsequently replaced. At that time, Mr Carrell came onto the Board as Chief Executive Officer. Campbell Mitchelson left the respondents' employment in 2009 and was replaced by Giles Cook. Mr Cook made it clear to the claimant that he no longer wished him to work from home and wanted him to work from the Glasgow office at least three days per week. However following upon various discussions, it was finally agreed that the claimant's practice of working from working from home could continue. However Mr Cook made it clear to the claimant that he was not satisfied with that outcome. In June 2009 the claimant went on sick leave and at his return to work interview, Mr Cook made it clear again that he was not happy about the claimant working from home. 4.7 Following upon the return to work meeting, the claimant gradually came to be excluded from all matters in which he had previously been involved in his role as Network IT Manager. The claimant discussed his concerns with the HR Director who encouraged him to see how matters might progress. Things did not improve and the claimant raised a formal grievance against Mr Cook in late July/early August 2009. 4.8 On 4 or 5 September, the claimant received a telephone call from Mr Cook and from Fiona McKee (HR Director) advising him that a decision had been made to suspend him on full pay earlier that morning. The claimant received a text message on the same day from a number which he did not recognise and which simply said "Got you". 4.9 The claimant was invited to attend an investigation meeting on 8 September 2009.

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4.10 In the period June to September 2009, the claimant's password had been changed on two or three occasions without his consent. 4.11 The claimant arrived at the respondents' office on 8 September 2009, in advance of the investigation meeting. The claimant was waiting in the reception area when Ian Carrell said to the claimant "We've got you this time Kenny, we've got you". He went on to say: "Fucking prick we've got you this time". Mr Carrell then climbed the stairs to the mezzanine level and he stood at the balcony and stared at the claimant. The claimant got up to speak to the receptionist to ascertain if she had heard what Mr Carrell had said to the claimant. At that point Mr Carrell shouted down to the claimant and the receptionist "Don't talk to him, this is my company, you'll do what I say." 4.12 Mr Cook was appointed as the Investigation Officer. The claimant had had a grievance meeting in mid August, concerning the grievance he had raised against Mr Cook. That grievance was being heard by the Operations Director.There had been no outcome issued in respect of the claimant's grievance at the date when the investigation meeting took place. When the claimant entered the investigation meeting, he told Mr Cook that he had an outstanding grievance against him and that he did not feel comfortable to attend a meeting with him.

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4.13 "Archive to go" is a utility which is used in conjunction with Novel Group Wise which was an in house email system. The reason that Archive to go was purchased was to take a copy of a user's mail box in order to archive it and also where a user's mail box might have become too full, to take a particular section out of the main system and archive that. One of the effects of archive to go was that it was an effective tool for scanning for viruses. That was discovered in 2002 because any viruses in the user's mail boxes which were being archived would be picked up as a consequence of using archive to go. There were others within the IT department who had access to the archive to go software. Both the members of the IT department and the IT system users knew about the software and there was a document within the IT department explaining how to use it. Campbell Mitchelson had told the claimant that it would be a good idea on a regular basis to randomly scan mailboxes using archive to go. The claimant had not been made aware by Mr Cook or anyone else that there had been any change to Mr Mitchelson's instruction following upon his departure in June 2009. 4.14 There is an obligation contained within the IT policy to notify employees if their emails have been downloaded. Mr Mitchelson's view, as expressed to the claimant, was that using archive to go it did not entail reading emails (simply checking for viruses) and accordingly there was no obligation under the policy to inform the user. 4.15 Andrew Sinclair was asked by Mr Cook and Mr McKee to carry out some investigation on the claimant's use of software as part of the investigation process. Andrew Sinclair was a member of staff who worked within the IT department on the helpdesk. The view reached by Andrew Sinclair expressed within the report produced by the respondent was that the system used by the claimant's workstation is a variation of Linux known as "Beos". However, there is nothing which links Linux and Beos and Apple (being the make of the claimant's workstation) and accordingly this entry by Mr Sinclair is inaccurate. Mr Sinclair looked in an area of the claimant's workstation where one would normally sign logs on a Linux machine. It is for that reason that Mr Sinclair reported that there was nothing on the claimant's workstation, whereas the reason for that was that he had not been looking in the correct place. 4.16 A PC user's password protects their identity on the network and the only credential to use the network would be that individual's password. Mr Cook authorised the changing of the claimant's password whilst he was off sick in June 2009 without the claimant's knowledge or consent.

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4.17 Mr Cook was not familiar with the archive to go software. What archive to go does is it extracts mail on the mail server onto the local machine and accordingly it makes a temporary copy of a user's mailbox onto that machine on which archive to go software is running. Archive to go software pulls emails from the server and runs them through a virus check. 4.18 The claimant denied accessing Fiona McKee's or Giles Cook's account at all on 14 July 2009 and advised the respondent of this. The claimant told the respondent during the disciplinary process that the files which they show in the investigation report as part of the evidence are history files and these can be

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created by gaining administrative access to a person's profile. Those with administrative access would be restricted to the IT team. In essence, the claimant advised the respondent that he believed that someone else had gone into his profile and had created these files which the respondent was relying on as evidence against the claimant. The claimant had detailed knowledge of how the systems were set up and installed, but creating files in this way is relatively straightforward. There were seven individuals within the IT helpdesk team. The whole team would be able to create files in this way. No enquiries were made by the respondents of any of these individuals to ascertain if they had created files in this way. 4.19 The respondent had 400 users and 70/80 servers, and accordingly their IT systems were relatively complicated.

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4.20 There are audit logs which the respondents had on their system to establish a user's activity and which allowed the creation of back up records which are made at the end of each day. Those back up records are difficult to change and therefore can be used as a check to ascertain whether the information which appears on the system was created on a particular day by comparing it with the back up record. 4.21 An investigation report was prepared and completed by Giles Cook on 25 September 2009. The claimant was called to the disciplinary hearing by letter dated 25 September 2009 and which hearing took place on 1 October 2009. The allegations which the claimant was to face at the disciplinary hearing was "conduct and the allegations outlined in the attached investigation report". The disciplinary hearing was conducted by Paul Mayho. Mr Mayho spoke to Mr Mitchelson who confirmed to him that the authorisation to use archive to go for the purposes of checking for viruses had been given to the claimant. No further investigation was carried out by Mr Mayho in light of the matters raised by the claimant at the disciplinary hearing. The claimant was dismissed on 15 October 2009. 4.22 The claimant was invited to attend a meeting on 14 October 2009 with Mr Cook present. The purpose of that meeting was for the claimant to demonstrate how others could have accessed his profile, how Mr Stewart's account of his PC was incorrect and to demonstrate the other matters which he relied upon in defending himself against the allegations. The claimant was unable to attend at that meeting by reason of the fact that he was on holiday. The claimant asked the respondent if he could reschedule the meeting. No contact was made with the
c l a i m a n t about this matter and the meeting w a s not rescheduled.

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4.23 Mr Mitchelson gave a statement to Mr Mayho. However, that statement is not consistent with the written note which he had also issued. No further investigation was made into that inconsistency.
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4.24 It is possible to be logged on as the same person on more than one system at the same time. Everyone within the IT department had the ability to run the archive to go software, although some used it more than others. No-one else within the IT system used archive to go for its' virus checking qualities. When the claimant used the archive to go software, he did not run it from his own PC, but

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would pick a server which was being used the least at that point (because archive to go slows down the machine). 4.25 The claimant appealed against his dismissal and an appeal hearing took place on 12 November 2009. The appeal was heard by the former operations director. There are no Minutes of the appeal hearing. The appeal hearing lasted less than an hour. 4.26 The claimant had lodged a grievance against Ian Carrell in respect of the incident which had occurred prior to the investigation meeting. That was raised in early September. The claimant had been advised that his grievance was rejected. 4.27 The appeal outcome letter was issued on 4 December 2009. There were no reasons set out in that letter explaining why the claimant's appeal had been unsuccessful. Reference made to Paul Mayho as being the individual to whom further correspondence should be addressed. Paul Mayho wrote to the claimant by email dated 7 December to advise him that the respondent would not be entering into any further correspondence on the matter. 4.28 The claimant secured alternative employment following upon the date of his dismissal which was due to begin on 18 January 2010. In fact the claimant's employment did not begin until 1 April 2010. The claimant has secured a role as a development manager with PPT (Scotland) Limited on a salary of 47,131.30 per annum and the claimant does not receive a pension through that employment. The claimant did not claim benefits during the period between 14 October 2009 and 1 April 2010. 4.29 The pension arrangement with the respondent was that the respondent would pay 117.83 per month and the employee contribution would be 25.14 per month. The report obtained by the claimant setting out his pension loss identified a loss of 2,207.36 up to the 14 April 2011. 4.30 The claimant seeks losses up to the 18 January 2010, being the intended start date of his employment with PPT (Scotland) Limited. The notional surplus of earnings from that date is 34.36 per week. The total surplus of earnings from 18 January 2010 up to the point at which the pension loss is sought amounts to 1,036.80. 4.31 The claimant received a net sum of 2,900 per calendar month which is 669 net per week during his employment with the respondent. That figure includes the claimant's car allowance. 5. 45 The Relevant Law

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5.1 The onus is on the respondent to prove the reason for the dismissal or the principal reason for it. A reason relating to conduct is a potentially fair reason. Once the employer establishes a potentially fair reason, the Tribunal then has to consider whether the dismissal was fair under Section 98(4) of the Employment Rights Act 1996 ("ERA"). That, in essence, means asking ourselves whether the

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employer acted reasonably or unreasonably in all the circumstances of the case in treating it as a sufficient reason for dismissing the employee. 5.2 The well established authority British Home Stores Limited v Burchell [1978] IRLR 379 provides that in a conduct dismissal the Tribunal have to ask itself the following three questions:5.2.1 Did the employer believe that the employee was guilty of the misconduct? 5.2.2 Did he have in his mind reasonable grounds upon which to sustain that belief? 5.2.3 At the stage at which he formed that belief on those grounds, had he carried out as much investigation as was reasonable in the circumstances of the case? 5.3 In addition, we have to consider whether there were any substantial flaws in the procedure such as to render the dismissal unfair and, finally, whether the dismissal was within the band of reasonable responses open to a reasonable employer in the circumstances of the case. 5.4 The case of Iceland Frozen Foods Limited -v- Jones [1982] IRLR 439, approved by the Court of Appeal in Post Office v Foley [2000] IRLR 827, lays down the approach that the Tribunal should adopt when answering the question posed by Section 98(4) of ERA. It emphasises that in judging the reasonableness of the employer's conduct, the Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer, and that the function of the Tribunal is to determine whether, in the particular circumstances of the case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. 5.5 Whereas the onus is on the employer to establish that there is a fair reason for dismissal, the onus is neutral when considering under Section 98(4) whether the employer has acted reasonably in all the circumstances in treating that reason as a sufficient reason for dismissal. 6. Discussion

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6.1 It is up to the employer to show the reason for dismissal and that it was a potentially fair one which falls within the scope of Section 98(1) and (2) and is capable of justifying the dismissal of the employees. The employer does not have to prove that it actually did justify the dismissal because that is a matter for the Tribunal to assess when considering the question of reasonableness. In this case the claimant disputes the purported reason put by the respondent in the ET3. The respondent was not present at the hearing to lead evidence to counter that of the claimant that he was dismissed because he had become a "thorn in the side" of the respondent because of the grievance he had raised against Giles Cook, his line manager, and later against Ian Carrell, the Chief Executive Officer. However, it should be recognised that the burden on the respondent at this stage is not a heavy one, but we have heard no evidence that the employer genuinely believed on reasonable grounds that the claimant was guilty of misconduct. The

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respondent has therefore failed to discharge this onus applying the Burchell principles, and so on that basis alone the dismissal is unfair. 6.2 Notwithstanding the failure of the respondent to establish the reason for dismissal, we have nevertheless gone on to look at the reasonableness had they established that the conduct was the reason. Under Section 98(4) of ERA, the question is whether it was reasonable for the employer to treat the reason as a sufficient reason to dismiss in the circumstances under Section 98(4). The burden of proof is neutral on this point.
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6.3 The Burchell test applies equally to the question of whether it was reasonable for the employer to treat that reason as a sufficient reason to dismiss in the circumstances under Section 98(4) when assessing whether the Burchell test has been met, the Tribunal must ask itself whether what occurred fell within the range of reasonable responses of a reasonable employer. That test applies equally to the procedures by which that decision was reached and it is that procedure about which we have heard significant evidence. 6.4 There are essentially three distinct acts which purport in the dismissal letter to form the basis of the reason for the dismissal to the claimant, namely:-

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6.4.1 accessing the email account of Giles Cook and downloading emails to remote location;
25 6.4.2 the same allegation in respect of Fiona McKee and related to allegations 1 and 2, removing that information to a Macintosh computer owned by the claimant). 6.4.3 accessing Glasgow staff salary costs and items from a personal document of Ian Carrell, as well as a confidential Board report. 6.5 Allegation 1 - the Giles Cook email. The evidence which was available to the respondent was that the claimant's password has been changed several times during June 2009 and thereafter. Campbell Mitchelson the former IT Director, delegated authority to the claimant to create permanent or temporary archives (amongst other things). Historically the claimant did not obtain the user's consent when running archive to go for virus checking purposes. The claimant denied accessing Giles Cook's mail box and the claimant told the respondent that there were seven employees on the IT helpdesk who have access to the general server drive and so some of them could have used the claimant's profile. The claimant told the respondent that the mimesweeper software had not been renewed in June 2009 and therefore the network antivirus security was at risk and the claimant also told the respondent that access to the network was available to everyone within the support team. 6.6 In relation to allegation 2 - the Fiona McKee emails. The information outlined in the paragraph above provided by the claimant to the respondent applies equally in relation to this allegation. 6.6 Moving the emails of Giles Cook and Fiona McKee to the Macintosh computer:- This was denied by the claimant (except for Campbell Mitchelson's emails which were downloaded to a DVD at his request). The data was not found

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on the Macintosh computer, but the claimant advised the respondent that they had not looked in the right place and offered to come in to show that there was no information held there. There was no appointment rearranged in order to enable the claimant to do that. 6.7 Allegation 3 - Board papers, salary information and Ian Carrell information:- The claimant told the respondents that the documents could have been accessed by another in the team who had logged in as the claimant. 10 6.8 The Employment Tribunal required to ask itself whether the investigation carried out by the respondent, having regard to the possible explanations articulated by the claimant, was one which fell within the band of reasonable responses. Given the seriousness of the allegations and the "defence" identified by the claimant, this Employment Tribunal concludes that no reasonable employer would have conducted such a limited investigation. The reason that we have reached that conclusion is that there are such significant shortfalls in the investigation which are so obvious that we cannot say that the investigation falls within the band of reasonable responses. Some examples of the obvious shortfalls include:6.8.1 that the IT team members were not interviewed to ascertain if they had accessed the claimant's profile. 6.8.2 that the meeting with the claimant was not rearranged so that he could demonstrate that he had not wiped his Macintosh as ar 13 September 2009 and so that he could show Mr Cook how others could go on to the server using his profile and so on. 6.8.3 So that the claimant could demonstrate the archive software so as to establish whether the coincidence of the mechanism for Giles Cook and Jennifer McEwan/Graham Higgins was suspicious or just as standard process. 6.8.4 A further statement from Campbell Mitchelson could have been obtained given that the account of the evidence in his letter and that in the statement of 1 October does not correspond. 6.8.5 further investigation with other than Mr Cook to understand whether the virus checking properties of archive to go were really required as part of the anti virus regime at that time.
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6.8.6 How frequently the claimant had acted under the standing instruction of Campbell Mitchelson in the past regarding the anti virus runs of archive to go. 6.9 Accordingly the Tribunal conclude that no reasonable employer would have conducted the limited investigation carried out by the respondent without making further enquiries of the type identified above. Having regard to the evidence, the Tribunal is not satisfied that the respondent had a genuine belief in the guilt of the claimant, or that they had reasonable grounds on which to sustain such a belief, or that they carried out an investigation falling within the band of reasonable responses.

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6.10 There were also a number of general procedural feelings, namely that Mr Cook was appointed as the Investigation Officer, notwithstanding that the claimant had lodged a grievance against him and that he himself had changed the claimant's password while the claimant was off sick in 2009. The appeal hearer sat at the same level as the disciplinary hearer. There were no grounds set out for the decision to reject the claimant's appeal and no further investigation was carried out by Paul Mayho notwithstanding the "defence" set out by the claimant at the disciplinary hearing. 6.11 We considered the question of whether an uplift should be applied under Section 207A of the Trade Union and Labour Relations (Consolidation) Act, but we reached the view that without having heard an explanation from the respondents for a failure to give reasons in the appeal outcome letter, it would not have been just and equitable to do so. 7. Decision

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7.1 The unanimous decision of this Tribunal is therefore that the claimant's dismissal was unfair. 7.2 7.2.1 Compensatory Award 14 weeks' loss at 669 per week (from the date of dismissal to 18 January 2010) = 9,366. Future pension loss of 2,207.36 minus excess earned of 1,036.90 = 1,170.20. Basic Award - 2,660

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7.3

7.4 The total of the compensatory award and the basic award is 13,196.20 and that is the amount which this Employment Tribunal orders the respondent to pay to the claimant.
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DEC

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Date of Judgment
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Entered in Register and Copied to Parties

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DEC 2911