THE INDUSTRIAL TRIBUNALS

CASE REF:    2747/11

CLAIMANT:	Steven Braden 

RESPONDENT:	Ulster Independent Clinic Ltd

DECISION  

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent and his complaint to the Industrial Tribunal is not well founded.  The title of the proceedings is amended to reflect the correct name of the respondent

Constitution of Tribunal:

Chairman:	Ms J Knight

Members:	Mr P McKenna
	Mr I Lindsay

Appearances:

The claimant was represented by Mr B Wall Barrister-at-Law instructed by John McKee & Son Solicitors

The respondent was represented by Mr P Hopkins Barrister-at-Law, instructed by Carson McDowell Solicitors.

ISSUE

1.	The tribunal had to determine whether the claimant was unfairly dismissed contrary to the provisions of the Employment Rights (NI) Order 1996.

EVIDENCE

2.	The tribunal heard the evidence of witnesses for the respondent, Mr David McCartney and Mrs Nicola McGregor and the claimant Mr Steven Braden.  The tribunal also considered documents contained in an agreed bundle to which it was referred during the course of the hearing.

3.	The tribunal refused an application made by the respondent under Rule 10 of the Rule 35(3) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 to strike out the claimant’s claim as having no reasonable prospect of success after hearing submissions from Counsel for the parties.

4.	It was confirmed during the course of the hearing that Mr Lindsay, a member of the tribunal hearing was related to Mr Hopkins BL, although neither Mr Lindsay nor Mr Hopkins BL were aware of this prior to the hearing.  This matter was raised with counsel for the parties, who took instructions from their respective clients.  No objection was raised by either party to Mr Lindsay remaining a member of the panel.

FINDINGS OF FACT

5.	The tribunal found the following relevant findings of fact to be proven on a balance of probabilities:-

(1)	The claimant, Mr Steven Braden, was employed by the respondent, an independent hospital as an IT Assistant from 19 August 2008 until his dismissal for gross misconduct on 30 September 2011.  The claimant worked in the IT Department with his line manager, Mr David McCartney, the IT Manager and Mr Kyle Templeton, IT Assistant.  The claimant’s role was to assist other staff in the hospital with IT issues.  The claimant as a member of the IT Department had full administrative access to the respondent’s computer systems, which contain confidential patient and financial information.  The respondent has almost 300 employees, of whom approximately 10/12, including the claimant, have full internet access.  Other members of staff had limited access to the internet and were required to use a computer on a bench at the back of the IT office to access the internet.  The IT Department issued each employee with their own username and password.  The claimant was assigned a work laptop.

	(2)	The respondent had in place a Computer Internet and Email Misuse Policy.  This provides that employees unreasonably using the respondent’s computers for personal and private use will be dealt with and may face serious disciplinary action under the respondent’s disciplinary policy, including dismissal for gross misconduct.  This prohibits the user of email and internet other than in connection with the respondent’s business and as part of the execution of the employee’s normal job duties and prohibits the use of email or the internet to circulate any non business material.  The claimant was aware of this policy and had signed off as having read this policy.  In addition the claimant completed the Accounts & IT Department Induction Programme, which he signed off on 9 September 2009.

	(3)	Mr McCartney was asked by Ms Shona Dawson, Human Resources Officer to investigate an allegation made during an investigation of a matter raised by another member of staff that the claimant had logged another member of staff onto the internet using his own username and password.  Mr McCartney ran an initial search on the Barracuda web filter using the claimant’s log on details and the machines logged onto by him with his user name and password.  Although the search did not identify the machine connected with the allegation, Mr McCartney observed from the Barracuda report that there was a high number of hours of internet access to sites such as Facebook, Twitter, Messenger Live and Emerald Isle Exotics.  Mr McCartney reported his findings to Mrs Diane Graham, Matron/Chief Executive of the respondent and the claimant was suspended on full pay on 31 August 2011.  His work laptop was collected from him on the same date.

	(4)	Mr McCartney then carried out a detailed investigation into the claimant’s internet use.  He ran a number of other Barracuda reports over a date range from 1 November 2010 until 31 August 2011 for web domains sorted by those accessed using the claimant’s logon details, by longest browsing times and by date.  He discussed these reports with the claimant at an investigatory meeting which took place on 8 September 2011.  The Barracuda reports indicated that the claimant’s desktop computer had been logged onto unauthorised social networking sites for extensive periods of time both during working hours and when he was not on duty.  For example he was logged onto Facebook in the date range for a total of 662:55:14 hours; Messenger Live for 171:54:49 hours; Twitter for 122:25:32 hours and Emerald Isle Exotics for 106:16:47 hours.  The claimant confirmed that during working hours he would have logged onto the sites using his clinic logon details but that he would have only spent a few minutes actively browsing the sites.  It did not appear to Mr McCartney that the claimant understood the security risks of leaving the computer logged on while he was out of the office.  He stated that he did not know if other people had logged onto his computer while he was out of the office and confirmed that he left it unlocked.  He also examined the claimant’s laptop and desktop computer.  Mr McCartney showed the claimant photographs he had taken of the claimant’s desktop computer and laptop and discussed with the claimant non work related files including Hair Company, Belfast Walking tours, Pest Control and Emerald Isle Exotics.  The claimant told Mr McCartney that he had used the respondent’s computer during and outside of working hours for very simple web design.  The claimant told Mr McCartney that he was aware that the laptop had been damaged when juice was spilt on it, which he had not reported, and that he was trying to source someone to repair it.  He advised that his partner, VF, (also an employee of the respondent) had used the laptop.  At the investigatory meeting the claimant acknowledged that he had signed for the respondent’s policy on computer internet and email misuse but that he did not think that he had read them properly.

	(5)	Following this meeting Mr McCartney carried out some further investigations in that he had obtained a report for access to the IT room on 29 December 2010 and he interviewed VF on 13 September 2011.  She denied that she had used the internet to access social networking sites during working hours using the claimant’s logon details.  She confirmed that she had used the claimant’s laptop on one occasion.

	(6)	Mr McCartney compiled a report into his investigation and it was decided to take disciplinary action against the claimant.

	(7)	The task of carrying out the disciplinary hearing was delegated to Ms McGregor, which is in accordance with the disciplinary policy and procedure.  She wrote to the claimant on 15 September 2011 to invite him to a disciplinary meeting on 21 September  and setting out the disciplinary charges against him:

•	Serious security risk by being logged onto the internet for unattended long periods of time in breach of the respondent’s Intrusion and Hacking Policy and procedure

•	Serious Misuse of the respondent’s computer and software to conduct non work related business activities

•	Serious breach of the Computer Internet and Email Misuse Policy in that excessive time was spent using the clinic’s computer to access non work related sites during working hours

•	Serious breach of trust and confidence
	
	The claimant was advised that these matters were regarded as potentially gross misconduct which in the absence of a satisfactory explanation could lead to his dismissal.  In addition there was an allegation of major misconduct, namely neglect of the clinic’s laptop resulting in damage which was unreported, which if proven could lead to a final written warning.  Ms McGregor enclosed a copy of the disciplinary policy and procedure, together with the Barracuda reports, IT Door access record for 29/12/10, photographs taken by Mr McCartney of the claimant’s desktop computer and laptop, minutes of the investigatory interview, the respondent’s policies on Computer Internet and Email Misuse and Intrusion and Hacking, copy of the claimant’s signature of having read the respondent’s IT Manual on 14/2/11 and the policy Manuals on 9/9/08.  The claimant was advised as to his right to be accompanied at the disciplinary hearing by a work colleague or trade union representative.

(8)	At the disciplinary hearing the claimant confirmed that he was content to proceed unaccompanied.  Ms Dawson was present to take notes.  The claimant sought clarification as to whether his personal mobile telephone could have triggered the Barracuda web filter through the respondent’s WIFI system (Gloop) as he had entered his logon details onto his phone.  Ms McGregor put the charges to the claimant and gave him an opportunity to give his explanation.  Mr McCartney joined the meeting shortly after its commencement to give technical advice about the IT systems.  The claimant did not deny that he had logged on to internet networking and chat sites but he stated that it was not to the extent suggested by the Barracuda reports.  The claimant reiterated that his mobile phone connection could have been picked up by Barracuda.  He stated that a lot of other employees used his computer and he named two individual employees, JH and NS.  He told Ms McGregor that another employee, SD had asked him to source car parts for non work related purposes and that KT had also browsed unauthorised websites using his clinic login.  He stated that he did not understand the security breach in being logged onto unauthorised sites although he accepted that he was aware of the respondent’s computer use policies. 

	(9)	With regard to the non related work files which had been found on his work desktop computer, the claimant suggested that he had been using the Hair Company and Pest Control to train himself about the respondent’s intranet through lynda.com, an online software training site.  The claimant accepted that he had used the respondent’s computer and software to scan images for Classic Carpets and to adjust banners for Emerald Isle Exotics, the claimant’s hobby website.  This contradicted what he said at the investigatory meeting when he told Mr McCartney that he was working on these files as simple website design.  The claimant explained that his laptop was accidentally damaged when orange juice spilled onto it.  He apologised for his behaviour and stated that he did not intend to put data in danger.

	(10)	Following the disciplinary meeting, Ms McGregor carried out further investigations into the matters raised by the claimant.  She re ran the Barracuda reports on the claimant.  This confirmed that internet sites were accessed by desktop computer using the claimant’s login details rather than being accessed by his mobile through the respondent’s WIFI.  It also confirmed that lynda.com did not feature in the top 50 websites accessed by the claimant during the relevant period.  There were no records of the claimant having requested training on intranet design.  An interview with his colleague KT confirmed that KT had responsibility for the respondent’s intranet and the claimant had not shown an interest in working on the intranet.  This was also confirmed by Mr McCartney.  KT confirmed that he had not witnessed any other employees working on the claimant’s desk top and that he had only ever seen JH and NS using the computer at the back of the IT room, which was designated for use by non IT staff.  Ms McGregor interviewed JH and NS, both of whom denied having used the claimant’s computer and SD who denied having requested the claimant to order car parts for him from the internet.  She also requested that a Barracuda report be run against the login details for KT for the same period to investigate the claimant’s allegation that he had also used his work login details to access unauthorised internet sites.  This revealed that during the period from 1 November 2010 until 31 August 2011 KT spent 14 minutes visiting unauthorised internet websites.

	(11)	After reviewing the relevant documentation Ms McGregor reached her decision in relation to each of the disciplinary charges against the claimant.  Her decision making is recorded in a six page document from which it is clear that she carefully weighed all the evidence and carefully considered the explanations which were given by the claimant at both the investigatory and disciplinary hearings.

	(12)	She concluded that the claimant was guilty of serious misconduct and imposed a final written warning in relation to each of the charges that the claimant had caused a serious security risk by being logged onto the internet for unattended long periods of time in breach of the respondent’s Intrusion and Hacking Policy and procedure and neglect of the respondent’s laptop causing damage which was unreported.  She further concluded in relation to the charges of serious misuse of the respondent’s computer and software to conduct non clinic related business activities and serious breach of the respondent’s policy on Computer Internet and Email Misuse in that excessive time was spent using the clinic’s computer to access non work related sites during working hours that the claimant was guilty of gross misconduct and that she found his explanations unacceptable.  She concluded that there was no evidence to support the claimant’s assertion that he had worked on non work related files for training purposes and took into account that he had given inconsistent explanations at the investigatory and disciplinary meetings.  She did not accept the claimant’s explanation and considered that this made matters worse as she formed the view that the claimant had tried to mislead her.  Neither did she find any evidence to support the claimant’s contention that other people had used his computer and she took into account that the claimant admitted that he had left his computer unlocked and accessible to others, risking the security of information contained in the system.  Due to the gravity of the claimant’s conduct Ms McGregor considered that the duty of trust and confidence placed in the claimant as an employee had been totally undermined and that summary dismissal was the appropriate penalty

	(13)	Ms McGregor wrote to the claimant on 30 September 2011 to notify him of his summary dismissal and the reasons for her decision.  In her letter she informed the claimant of his right to appeal against her decision and enclosed a further copy of the respondent’s disciplinary policy and procedure.  The claimant did not appeal.

	(14)	The claimant lodged his complaint of unfair dismissal with the Office of the Tribunals on 11 November 2011.  He contended that the penalty of summary dismissal for excessive use of the internet and using the respondent’s desktop and computer to conduct non work related activities was unwarranted; that he was unaware that his behaviour was inappropriate and wrong until the disciplinary hearing on 21 September 2011; that the respondent had acted inconsistently in that other employees who had used the computer for unauthorised internet access were not similarly disciplined; that the respondent had failed to follow its own procedure because the disciplinary hearing was conducted by Ms McGregor instead of Matron; that Ms McGregor was biased against him and wanted to force him out of the clinic because of allegations made about him by his partner’s line manager.  The claimant’s case, as made during cross examination of the respondent’s witnesses included matters which had not been previously raised by the claimant at any stage during the disciplinary process.

THE LAW

6. 	An employee has a right not to be unfairly dismissed by his employer and it is for the employer to establish the reason for the dismissal.  A dismissal is potentially fair if the employer can establish that the reason for the dismissal relates to the conduct of the employee.

7.	Where the employer has shown that the reason for the dismissal is potentially fair, the determination of the question whether the dismissal is fair or unfair having regard to the reasons shown by the employer 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 the sufficient reason for dismissing the employee and shall be determined in accordance with equity in the substantial merits of the case.

8.  	In Rogan v South Eastern Health and Social Care Trust (2009) NICA 47 the Court of Appeal of Northern Ireland stated at paragraph 21:  “The test for whether the dismissal was fair or unfair is set out in article 130 of the Employment Rights (Northern Ireland) Order 1996 but in misconduct cases it is generally helpful to follow the remarks of Arnold J in British Home Stores.  It is for the employer to establish the belief in the particular misconduct.  The tribunal must then consider whether the employer had reasonable grounds upon which to sustain the belief and thirdly whether the employer had carried out as much investigation into the matter as was reasonable in all circumstances.  The tribunal must also, of course, consider whether the misconduct in question was a sufficient reason for dismissing the employee.  Although the tribunal did not approach the matter in this sequential way it is possible to determine the tribunal's consideration of each of these matters.”.   In paragraph 26 the judgement  the Court of Appeal makes it clear that the weight to be given to the evidence is for the disciplinary panel and not for the tribunal.

9.  	In British Homes Stores v Burchell [1980] ICR 303 Arnold J described the task of the tribunal as follows: “What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  First of all, there must be established by the employer the fact of that belief.  Secondly, that the employer had reasonable grounds for that belief.  And thirdly that the employer had carried out as much investigation into the matter as was reasonable in the circumstances of the case”.

10.    The leading case on the application of Article 130(4) of the 1996 Order is Iceland Frozen Foods v Jones 1982 IRLR 439 EAT in which Browne-Wilkinson J stated that “the correct approach for the industrial tribunal to adopt in answering the question posed by [Article 130(4) of the Order] is as follows:-

i.	the starting point should always be the words of [Article 130 (4)] themselves of the employer’s conduct, not simply whether they consider the dismissal to be fair;

ii.	in applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they consider the dismissal to be fair;

iii.	in judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

iv.	in many, though not all cases where there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another employer might quite reasonably take another;

v.	the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within the band, the dismissal is fair; if the dismissal falls outside the band, it is unfair.”

11.    In the case of Sainsbury’s Supermarkets Ltd v Hitt 2003 IRLR 23, the Court of Appeal stated that it was not for the tribunal to substitute its own view for that of the employer.  The Court of Appeal stated as follows:-

		“The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies as much to the question whether the investigation into the suspected misconduct was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss for the conduct reason”.

CONCLUSIONS

12.	The respondent complied with the statutory disciplinary procedures, therefore there was no question in this case of an automatically unfair dismissal.  The tribunal was satisfied that the respondent had established that the reason for the claimant’s summary dismissal related to his conduct, which is potentially a fair reason for dismissal.
  
13.   	The tribunal then went on to consider whether in all the circumstances the respondent acted reasonably or unreasonably in treating this as sufficient reason to dismiss the claimant.  The tribunal was satisfied on a balance of probabilities that Ms McGregor, as the disciplinary authority had a genuine and reasonable belief that the claimant was guilty of gross misconduct.  The evidence gathered during the preliminary investigation and the disciplinary hearing supported the respondent’s belief that the claimant was guilty of serious misuse of the respondent’s computer and software to conduct non clinic related business activities and a serious breach of the respondent’s policy on Computer Internet and Email Misuse in that excessive time was spent using the clinic’s computer to access non work related sites during working hours.  The claimant admitted that he had used the respondent’s IT equipment for his own purposes and that he had logged onto unauthorised websites.  However it was disputed that these matters should not have been treated as gross misconduct and that the penalty of summary dismissal was outside the band of reasonable responses. 

14.     The tribunal considered that the respondent’s disciplinary policy and procedure and IT policies were clear that these offences fall into the category of gross misconduct and that in the absence of a satisfactory explanation is likely to lead to summary dismissal.  The claimant was given an opportunity at the disciplinary hearing to make his case and Ms McGregor assiduously carried out investigation into all of the matters raised by the claimant at that stage.  It is clear that Mrs McGregor carefully weighed the evidence in reaching her decision and in considering the different explanations proffered by the claimant at different stages of the process, concluded that he was guilty of gross misconduct, that he had tried to mislead her and that there was consequently a fundamental breakdown in the respondent’s trust in the claimant.  The tribunal was satisfied that the disciplinary process was procedurally fair.  The disciplinary policy allows for the disciplinary hearing to be carried out by someone other than Matron.  As Mr McCartney’s line manager, the tribunal considered that it was reasonable for Ms McGregor to conduct the disciplinary hearing. 

15.     The claimant sought to raise additional matters in his complaint to the tribunal which were not raised during the disciplinary process.  These included an allegation that Ms McGregor was biased against him and set out to terminate his employment and that he ceased to logon to social networking sites in or about February 2011, when he signed for the revised computer, internet and email policy and he identified other former colleagues who he said had used his computer in addition to those named by him in the disciplinary process.  The tribunal considers that the claimant could have but chose not to raise these matters in an appeal, even though he was advised of this right by the respondent.  No explanation for this was given to the tribunal which considers that the respondent cannot be criticised for failing to address matters which were not raised by the claimant at the time. 

16.   In giving consideration to all the circumstances, the tribunal does not find the claimant’s complaint of unfair dismissal to be well founded and dismisses the claimant’s claim in its entirety.

Chairman:

Date and place of hearing:  1 and 2 March 2012, Belfast.

Date decision recorded in register and issued to parties: