Although Mr Imtiaz appeared at the 3(10) hearing, described as a "Representative" he did not appear before me, the claimant being represented by Mr Millen of counsel. Mr Kirk of counsel, appeared both below and before me. I did not have the skeleton argument referred to by Judge Stout before me, rather a much more succinct one submitted by Ms Millen. I will refer only to the arguments as advanced at the hearing.
The background to the case is relatively straightforward. The claimant had been employed as an immigration enforcement officer from 1991 to February 2022, when she was dismissed. Among other things the Home Office operates a UK Visa Central Reference System, known as CRS. Following an investigation in 2020 it was determined that the claimant had carried out searches using the CRS system and had viewed personal data through Home Office systems between June 2006 and August 2017. One such look-up was of a customs official in Pakistan, by the name of Aktar, who was an old school friend of the claimant. Others were of people whom she was sponsoring for the purposes of immigration into the UK.
In June 2013 it had been made clear to all staff that there would be a zero tolerance policy of misuse of Home Office systems including viewing data in relation to individuals other than as part of an officer's legitimate business need. The tribunal set out the policy at para 16 of its reasons, including the following:
Between June and August 2013 the claimant made numerous look ups in relation to her in-laws. The tribunal recorded at paragraph 20 that at the time she was suffering from a difficult home life and was estranged from her second husband and his relatives who were mistreating her.
In 2015, the claimant carried out searches on the CRS on relatives of a junior work colleague of hers, at the request of that colleague.
In 2017, the claimant looked up or attempted to look up at least two of the same relatives using a wildcard name search. It was apparently not possible to access the records that she intended to.
On 2 and 3 August 2017 the claimant sent an email to an enforcement department and one of her managers, an immigration inspector, reporting that one of the relatives of the work colleague involved in the 2015 and 2017 look-ups was on his way to the UK with the intention of working at a Sikh temple. She also made notes on the CRS records of two of the relatives of her work colleague.
The searches were detected in late 2020 and an audit was carried out by Mr. Newbould. The claimant was suspended from work on the 1 st of March 2021 and Mr Wilkinson appointed as the decision manager in relation to the claimant's case. The claimant was notified of that investigation in a letter which made clear that although breaches were alleged to have taken place from the 25 th of June 2006 until the 3 rd of August 2017, some 6 searches were made and 20 records viewed after the announcement of a zero tolerance policy in June 2013.
Mr. Wilkinson appointed Mr. Miah to investigate the claimant's conduct, specifically asking him to look at incidents that occurred between June 2013 and the present, and asking for bhis view whether there was a case to answer.
Unfortunately, Mr. Miah's investigation strayed beyond his remit and a number of questions were asked of the claimant in relation to the period 2006 to 2012. The questions were put in writing because the claimant's mental health had deteriorated and she was signed off with stress from the 1 st of April 2021.
At paragraph 37 and following of the reasons the tribunal noted the following:
Mr Miah's report was plainly unsatisfactory and demonstrated that he had not properly understood his brief. He concluded that there was a case to answer in respect of certain allegations prior to June 2013. He did not mention the 2015 look-ups at all, but accepting at face value the claimant's assertion that HMI Smith had authorised her to update the records, concluded that there had been a legitimate business reason to do the checks in 2017. The tribunal drew the inference that as the 2015 checks had involve the same people, Mr Miah did not think that these gave rise to a case to answer either. It noted that Mr. Miah had not spoken to HMI Smith.
Mr. Wilkinson contacted Mr Smith in January 2022 asking a series of questions which are set out at paragraph 54 of the reasons. In short, Mr Smith replied that he did not recall authorising these checks or instructing the claimant to carry them out. He made clear in a covering email that he would not have authorised a member of staff to conduct searches on someone whom they or a colleague had sponsored.
Mr. Smith's responses were sent to the claimant and her union representative on the 26 th of January.
A disciplinary meeting took place on 4 February 2022 by Teams. The claimant was accompanied again by her union representative.
Following the disciplinary meeting, but before issuing his decision, Mr Wilkinson made further enquiries, this time of Mr. Edwards. That person was asked to clarify whether he had authorised any operational activity or research relating to those named in the checks. This was said to be a double check as to whether there could have been any authority given to the claimant for the searches made. Mr Edwards confirmed that no such activity had been authorised him neither had he commissioned anyone to undertake such research. Mr Wilkinson also went back to Mr Newbould, who had carried out the initial audit, seeking to check whether there had been any legitimate or business related reason that could have been missed or overlooked. Mr Newbould responded that there was no indication then or now of any enforcement action against any of the people listed nor any lawful business reason for a staff member in enforcement to be accessing those records.
Mr. Wilkinson did not mention the enquiries that took place following the disciplinary meeting to the claimant or her representative at the time.
On 9 February 2022 the respondent wrote to the claimant confirming that she was summarily dismissed for gross misconduct and advising her as to her right of appeal. As cited in the tribunal's reasons the letter of dismissal was in the following terms:
An appeal took place on 14 April 2022 chaired by Mr Shoker. It was not upheld.
I turn to the grounds of appeal, and to Grounds 4 and 5.
Ms Millin submits that the Tribunal erred in failing to take the 2015 ACAS Code of Practice of Disciplinary and Grievance Procedures (The ACAS code) into consideration and failed to deal with the submissions made by the claimant about the breaches. She argues that the code forms the basis on which an employers conduct should be judged (Lock v Cardiff Railway Co Limited (1998) IRLR 358 ) and had the tribunal taken note of the requirements of the code, it may have arrived at a different conclusion regarding the reasonableness of the employer's decision.
So far is ground 5 is concerned, she argues that the failure to provide the claimant with the evidence of Mr Newbold and Mr Edwards before arriving at a decision rendered the procedure unfair. She criticises the tribunal's finding that, had the evidence of Mr Newbold and Mr Edwards been provided to the claimant and her representative, it would have made no difference.
Mr Kirk points out that it is not an error of law for a tribunal not specifically to quote from the ACAS code. Whilst s 207 of the Trade Union and Labour Relations (Consolidation) Act 1992 provides that the tribunal shall take into account any provision of the AAS code which appears to it relevant to any question arising in the proceedings, this does not mandate citation by a tribunal of the relevant provisions. So far as this case is concerned, the relevant provisions of the Code are, para 6, which stipulates that in misconduct cases, where practical, different people should carry out the investigation and disciplinary hearings and para 9 which provides that it would normally be appropriate to provide copies of any evidence, which may include any witness statements, with the notification of a disciplinary meeting.
The language of each of these provisions is far from mandatory, and it does not follow, Mr. Kirk argues, that any breach renders a dismissal automatically unfair. Mr Kirk also seeks to support the tribunal's conclusion that the failure to provide this additional evidence gave rise to no material unfairness, contending that the tribunal was entitled to focus on what the impact of the procedural shortcomings would have been to the overall results.
At paragraph 117 of the reasons, the tribunal noted that the action taken by Mr Wilkinson in approaching Mr. Smith directly, Mr Miah having failed to do so, was a breach of the respondent's disciplinary procedure insofar as it conflated the roles of investigation manager and decision manager. The tribunal noted that, if the original investigation was deficient, the decision manager should have sent it back to the investigation manager rather than seek to rectify it himself. The tribunal concluded that, whilst this was a technical breach it was also a shortcut to save time which did not cause any real prejudice to the claimant. The outcome, it held, would have been likely to be the same.
The tribunal also considered Mr Wilkinson's failure to disclose to the claimant the discussions which he had with Mr Newbould and Mr. Edwards, following the disciplinary meeting finding it to have been a further shortcoming in the procedure. However, the tribunal held that what Mr. Edwards and Mr Newbould told Mr Wilkinson following the disciplinary hearing did not help the claimant and was essentially a "nil return "in relation to the question that he had sought clarification of, which could have been in the claimant's favour.
In my judgment, there was plainly substantive compliance in this case with the requirements of the ACAS Code, and the specific failings that the relevant paragraphs address were clearly identified by this tribunal and referred to specifically. The letter of dismissal spells out very clearly the detailed findings which were made. The additional enquiries carried out by Mr Wilkinson following the hearing were, in my judgment, attempts by him to see whether there might have been some authorisation of the claimant's actions. Had those enquiries not been made it seems to me that the evidence was already squarely against the claimant's case, and the outcome would have been the same. I can see no error of law arising from the way that the tribunal reached its conclusions on this issue. For these reasons, grounds 4 and 5 fail.
Ground 7 concerns the apparent inconsistency in the treatment of the complainant in dismissing her when, in the other case of a similar nature which Mr Wilkinson had presided over, the employee concerned had not been dismissed. The complaint is that the tribunal failed to make a proper comparison of the two cases and the circumstances of the other employee were not considered. Moreover, there was no mention in the tribunal's conclusions as to reasonableness.
Mr Kirk points out that the evidence of Mr Wilkinson had been that he had checked with HR to ensure that his decision was consistent with policy and in line with other decisions being made in similar situations. He produced a note of evidence which confirmed that Mr Wilkinson gave evidence in cross-examination that he had given the other employee 24 month final written warning, the principal difference between the cases being that whereas in the claimants case there had been 20 look-ups, in the other case that had been only four. Mr Kirk says that, following this evidence no further questions of Mr Wilkinson were asked in cross-examination about the circumstances of the other employee's case. In such a situation, it was not open to the tribunal to go beyond the evidence in the case.
Paragraph 140 of the reasons the tribunal noted that whilst an employer should consider a comparator if it is reasonable to do so, on the facts of this case in order to engage that obligation, the initial onus was on the claimant to adduce the necessary facts to enable the respondent to make the comparison.
At paragraph 143 of the reasons the tribunal commented that the claimant provided no specific information or evidence about any comparator, and no specific comparators were mentioned to either Mr. Wilkinson or Mr. Shor in cross-examination.
At paragraph 144 the tribunal noted that the comparators argument was a mere assertion and the respondent decision-maker were entitled to make their decisions in the absence of any material relating to the comparators having been put forward by the claimant.
In the circumstances, it is evidence that there was no error of law by the tribunal in relation to this issue, and ground 7 also fails.
Ground 11 is predicated upon it having been a specific plank of the claimant's case that Mr Wilkinson was acting in bad faith, was prejudiced and biased. Beyond re-stating that bald assertion Miss Millen does not expand further on this allegation. I have looked through the further and better particulars that were provided by Mr Aziz of the ET 1 as originally lodged, and note that there are no such allegations made.
Mr Kirk says that it was never put to Mr Wilkinson in evidence that he was acting as the ground alleges. As there has been no evidential material put forward on the claimants behalf to suggest that this was a plank of her case, or even a small part of it, it reinforces my view that the reason that the tribunal has not made reference to this allegation is because it was not made and was not an issue before the tribunal. This was a detailed and careful decision with clear reasons. Ground 11 is therefore dismissed.
Grand 13 is the next one dealt with by Judge Stout, so I will take it in in that order. Ms Millen argues that in certain circumstances a delay in the conduct of an investigation might of itself render otherwise fair dismissal unfair, an example being where an employee might be prejudiced because of fading memory. She also points out that the tribunal did not consider whether the delays themselves may have affected the respondent view of the claimants conduct.
Mr. Kirk contends that the tribunal considered all of the relevant facts, including the length of the delays and the reasons for it and the extent to which any delay impacted negatively upon the claimant.
The tribunal made a number of findings concerning delay, from paragraphs 120 onwards. It noted, that following the discovery of the unauthorised searches, in 2020, the COVID-19 pandemic struck, resulting in a slowdown of many aspects of life in this country. The tribunal criticised the "leisurely pace" of the investigation but concluded the parts of the delay were caused by factors outside the respondent's control. It commented at para 127 that the claimant's mental health deteriorated quickly after she was suspended enjoying the first half of 2021, following which the respondent was not responsible for the delays. It found that any additional deterioration in the claimant's health during the period of delay in late 2021 was likely to have been marginal.
There is nothing in the original ground 13 that suggests that the delay in carrying out the investigation and the disciplinary process had any bearing on the respondent's view of the seriousness of the allegation. The tribunal concluded, as it was entitled to, that the respondent had made clear as long ago as 2013 how seriously it viewed unauthorised look-ups on its system, and that Mr Wilkinson reached a conclusion which was within the range of reasonable responses open to him. No error of law on the part of the tribun al is apparent
The final ground referred to by Judge Stout is under grounds 10 and 12 – limited to whether the look-ups which the claimant conducted were in pursuit of a legitimate business need as they were broadly in furtherance of immigration enforcement. The question posed is whether there was separate offence, with which the claimant was not charged, of investigating family members.
Ms Millen's skeleton argument simply recites this formulation. Mr Kirk describes it as arising from a misunderstanding: the policy is that nobody can access information without a legitimate business need. Embarking on an investigation into one's own family members or spondees, and/or those of colleagues in support of private ends, as opposed to investigations properly assigned to an employee, can never be a legitimate business need. I note at paragraph 12 of the reasons the tribunal cited a Chief Immigration Officer called by the claimant as a witness as saying, under cross-examination that "if [his]job was to use CRS to look up offenders, he would not ask a member of the offender's family to do the looking up, and he wouldn't ask another officer to look up his own family or relatives for him".
The thrust of the claimant's case was that she had been authorised by someone else to do the look-ups in question. That evidence was rejected by the tribunal, as it was entitled to do. In those circumstances there can have been no legitimate business need.
Having considered the grounds of appeal as permitted to be advanced at this hearing, they are all dismissed.