1. I refer to the parties as the Claimant and the Respondent, as below. The appeal before me is that of the Claimant against a Reserved Judgment of the London (Central) Employment Tribunal (Employment Judge Grewal, sitting with members on 21-25 July and then 28 July 2014 in chambers; "the ET"), sent to the parties on 20 October 2014 and comprising some 128 paragraphs, over 27 pages. The Claimant appeared before the ET in person but has been represented on this appeal by Mr Tatton-Brown of counsel. The Respondent was and remains represented by Ms Masters of counsel.

1. By its Judgment the ET dismissed various claims made by the Claimant, of which I am only concerned with its rejection of his claim of unfair dismissal. His appeal was initially considered on the papers by Lewis J to disclose no reasonable basis to proceed. As was his entitlement, the Claimant sought an oral hearing under Rule 3(10) of the Employment Appeal Tribunal Rules 1993, which took place before HHJ Peter Clark on 15 April 2015, at which time Mr Tatton-Brown first appeared for the Claimant (acting under ELAAS) and provided amended grounds of appeal, which were permitted to proceed to this Full Hearing.

1. The Claimant was employed by the Respondent (and its predecessor) as an ICT network engineer, from 7 September 2009 until his dismissal by reason of gross misconduct on 7 June 2013. As HHJ Peter Clark summarised in his Judgment on the Rule 3(10) Hearing, the ET's findings of fact point to a history of failures by the Claimant to follow reasonable management instructions culminating in a first written warning, decided upon by a Ms Sehgal on 14 January 2013, which was confirmed in writing to the Claimant on 28 January 2013 (ET paragraphs 86 to 87). An appeal against that warning remained unresolved as at the Claimant's dismissal.

1. Prior to the issuing of that warning, however, an incident had taken place on 24 October 2012, when the Claimant had logged on to another employee's computer (it had previously been the Claimant's PC and was on his old desk). There was an exchange between the Claimant and his manager, Mr Mongia, about the fact that the Claimant was copying what he said was his personal data on his unencrypted personal hard drive, which had not first been vetted for security purposes (ET paragraph 78). The Claimant then went to the registration authority office although he had previously been told that that was not a suitable office from which he might work, access to that office being restricted because it issued smart-cards that enabled persons to have access to GP records detailing patient information and the Claimant did not have the right level of security clearance (ET paragraphs 66 to 67).

1. This matter was investigated, and at the end of February 2013 the Claimant was informed that there was prima facie evidence of misconduct and the matter would proceed to a formal hearing on 7 March 2013. He was advised that the manager conducting the disciplinary hearing would not be told about the January 2013 warning unless and until any of the allegations being considered on 7 March had been found proven, and:

"92. … In those circumstances, the manager might choose to defer her decision on the sanction until his appeal had been determined."

1. A disciplinary hearing duly took place before a Ms Farquharson on 7 March 2013. The Claimant provided a written statement but then left the room. Having continued with the hearing in the Claimant's absence, Ms Farquharson upheld seven of the ten allegations made against him, three of which she characterised as gross misconduct, namely (i) the Claimant had knowingly breached the Respondent's IT policies, (ii) he had risked corrupting the system by using an unauthorised device and (iii) he had accessed the registration authority office despite having been told not to do so (ET paragraph 101). The other matters found proven were considered to be incidents of serious misconduct.

1. By letter of 13 March 2013, Ms Farquharson informed the Claimant of her findings and that the normal sanction would be dismissal in respect of the three offences of gross misconduct and a final written warning in respect of the four remaining matters. She did not, however, consider it appropriate to determine sanction at that stage as:

"… Based on your behaviour and approach at the hearing, I was concerned that you might be unwell and I have asked that you be referred to the Occupational Health Department for a clinical opinion as to whether any of your actions were attributable to a health issue. … If you advise that you do not intend to attend or if you fail, without acceptable reason, to attend an appointment arranged for you, then I will advise my final decision without reference to your state of health. On this basis, the notification of my final decisions will be held, pending the outcome of the Occupational Health appointment, as will confirmation of your right to - and the process for - appeal against my decisions."

1. Although the Claimant did raise various objections in response to Ms Farquharson's letter - and I have been taken to his emails of 15 March 2013 and 2 April 2013, to which Ms Farquharson was also included as an addressee, albeit they were actually dealt with by Ms Gibbs from Human Resources at that stage - there was a referral to Occupational Health and a report was produced on 10 April 2013. That report was reviewed by Human Resources but was not considered to disclose any health issue bearing on the Claimant's conduct.

1. On 2 May 2013, a letter was sent to the Claimant informing him that Ms Farquharson had decided he should be provided with a further opportunity to present his case on 7 May 2013. There would be limitations on that opportunity - there would, for instance, not be a further opportunity to call or question witnesses - and evidence presented by the Claimant should relate to the events in question and not to subsequent events. The Claimant responded on 6 May 2013, stating he considered this to be a further breach of policy and due process and an act of victimisation. It became apparent he would not attend (ET paragraph 111).

1. On 8 May 2013, Ms Farquharson indicated to Ms Wallin of Human Resources that she was minded not to dismiss the Claimant but instead to issue a final written warning. On 13 May 2013 Ms Farquharson attended a meeting with Ms Wallin and Ms Gibbs, both of Human Resources, at which was also present a Professor Keith Stone, there to provide advice on patient confidentiality, and Mr Hakan Azozek, the Chief Information Officer, who attended to provide technical advice on the potential impact of the Claimant using his own hard drive on clinical services. It was at that meeting for the first time that Ms Farquharson learned of the January 2013 warning. She was told that it was for the Claimant's repeated failure to follow reasonable management instructions. She further understood that the Claimant had failed to attend an appeal hearing that had been arranged in March and believed his appeal had then lapsed on his failure to pursue it. It was apparent that Ms Farquharson did not have a complete picture of the appeal process in coming to that belief. There had in fact been further communications with the Claimant, of which she was unaware, and which, if she had have been aware, would have led her to investigate the position further (ET paragraphs 114 to 115).

1. Taking account of the advice given to her at that meeting and of the matters that had led to the January 2013 warning, without reconvening the disciplinary hearing, Ms Farquharson decided that the appropriate sanction was dismissal, the events of 24 October representing part of a pattern of failures by the Claimant to follow reasonable management instructions (ET paragraph 115). There was - albeit it is not referred to by the ET in its Reasons - an email exchange between Ms Farquharson and Ms Gibbs of Human Resources on 13 May subsequent to that meeting in which Ms Gibbs advised:

"… you are delivering a final written warning but because there is another warning on file he is dismissed. It is process that determines his dismissal."

1. In her evidence to the ET, Ms Gibbs acknowledged that this was wrong. In any event, Ms Farquharson's evidence to the ET was clearly that the decision was hers, and the ET's reasoning demonstrates that it accepted this (see in particular ET paragraphs 115, 123 and 124).

1. The Claimant was informed of this decision by letter of 13 May. He was dismissed with two months' pay in lieu of notice. Although advised of a right of appeal, he did not pursue that.

1. The ET found that the reason for the Claimant's dismissal was his conduct on 24 October 2012, a potentially fair reason for section 98 purposes. It concluded that the dismissal for that reason was fair notwithstanding the fact that the Claimant's appeal against the January first written warning remained pending, something of which Ms Farquharson had not been advised but which was, the ET concluded, unlikely to succeed (ET paragraph 124).

1. As permitted to proceed by HHJ Peter Clark, the Claimant's appeal is limited to a challenge to the rejection of his unfair dismissal claim, specifically: (1) the ET erred in concluding that the Claimant's dismissal was fair for the purposes of section 98(4) of the Employment Rights Act 1996 ("ERA") by failing to take account of all relevant circumstances, namely that the Respondent, having previously concluded that the conduct in question did not justify dismissal, nevertheless went on to dismiss having regard to an earlier disciplinary warning when (a) that warning was still subject to an appeal ("the appeal point"), (b) it had been issued only after the conduct in question had taken place ("the timing point"), and (c) the Claimant was not given the opportunity to be heard on this course ("the natural justice point"); and (2) the ET erred in taking account of an irrelevant matter, namely the likelihood that the appeal against the first written warning would not have succeeded.

1. The Respondent resists the appeal, essentially relying on the ET's reasoning, although conceding it had not been relevant at the liability stage for the ET to reach a view as to whether the Claimant's appeal against the January 2013 warning would have been likely to succeed.

The Claimant's Case

1. Before descending into the specific grounds of appeal, Mr Tatton-Brown made three general observations on the reasoning provided by the ET at paragraphs 123 to 124. First, there was a failure to take account of the erroneous advice given to Ms Farquharson by HR, that she was obliged to take the first written warning into account. Second, it was unclear whether the ET had found that Ms Farquharson had appreciated that the warning post-dated the conduct with which she was concerned or simply that she ought to have done. Third, the ET's finding as to the reason for the dismissal, the Claimant's conduct on 24 October, did not reflect a proper engagement with the real reason operating on Ms Farquharson's mind. Had it done so, then it would have needed to question whether there was a reasonable investigation, which would have required looking at the question of the outstanding appeal against the January 2013 warning.

1. Turning to the individual grounds, and starting with the appeal point, the issue here was Ms Farquharson's failure to have regard to both the January warning and to the Claimant's challenge to it, both of which were relevant (Tower Hamlets Health Authority v Anthony [1989] ICR 656 CA). Ms Farquharson could not have taken into account the relevant matter of the Claimant's extant appeal against the January 2013 warning, because she was unaware of it.

1. On the timing point, the purpose of a warning was to influence future conduct. Initially the Claimant had contended that reliance on a warning post-dating the relevant conduct would not be reasonable. Since becoming aware of the Judgment of the EAT (Lady Stacey presiding) in Sweeney (deceased) v Strathclyde Fire Board UKEATS/0029/13/JW, Mr Tatton-Brown moderated that submission but contended that the issue of timing remained one of the relevant factors to which the Respondent was required to have regard as part of its reasonable investigation (see per Moore-Bick LJ in Orr v Milton Keynes Council . Moreover, the warning was not obviously relevant in this case: it had not been a final warning; it post-dated the events in question; and it was itself subject to appeal.

1. Finally, on the natural justice ground, the ET had failed to have regard to what was a blatant breach of natural justice in this case. Ms Farquharson only learned of the first written warning on 13 May, which was when the Claimant was dismissed. He had obviously not been afforded the right to make representations. Whilst it was the case that the Claimant was afforded a right of appeal (which he did not take up), that did not answer the natural justice point. More than that, it was apparent that the input from Human Resources, specifically Ms Gibbs, had gone beyond advice on process and had strayed into sanction, incorrectly suggesting that Ms Farquharson was bound to take account of the January warning. HR had trespassed into the decision making process without the Claimant's knowledge, and that rendered the decision unfair (Ramphal v Department for Transport UKEAT/0352/14/DA).

The Respondent's Case

1. The reason for the dismissal was the Claimant's conduct on 24 October 2012. The relevance of the January 2013 warning was that it went to sanction.

1. Dealing first with the appeal point, this was misconceived. It failed to have proper regard to the limitations on the ET's role and to take account of what Ms Farquharson knew. The ET was not concerned with the correctness of the decision but with its reasonableness, given the knowledge of the dismissing manager (see the EAT's Judgment in Wincanton Group plc v Stone and Anor . Where the dismissing manager's knowledge was erroneous, the question was whether she had carried out a reasonable investigation. Paragraph 114 recorded the relevant findings of the ET and showed Ms Farquharson's belief that the appeal was not extant was reasonable in all the circumstances. Her concession that, had she known the appeal might still be live, she would have investigated further, did not assist the Claimant; there was nothing to support the contention that she should have known.

1. Moving to the timing point, what was clear from the Sweeney case was that a warning looked both ways and so could be relevant to take into account even if issued after the event that led to the dismissal decision. Even if Ms Gibbs had conceded to the ET that she had failed to appreciate that the January warning post-dated the conduct with which Ms Farquharson was concerned, that did not mean that it was irrelevant to Ms Farquharson's decision making.

1. Lastly, on the natural justice point, this had expanded in the Claimant's submissions; in particular, the reliance placed on Ramphal, and the suggestion that Ms Gibbs had acted improperly or had given misleading advice, was not part of the case before the ET. In any event, it was clear that Ms Gibbs had acted appropriately; and, as the ET found, it was Ms Farquharson who made the relevant decision, and that was not based on any improper involvement by Ms Gibbs. This was not a Ramphal case, and it was not open to the Claimant to look behind the ET's finding, which was based on Ms Farquharson's evidence before it.

1. Taking this as a straightforward issue of natural justice, the Claimant had been given the opportunity to make representations on the issue of sanction, and he was aware of the January warning. Human Resources had advised him Ms Farquharson would make her initial findings without knowing of the January warning but would then be told of that once she had reached her conclusions and might defer her decision on sanction until his appeal against that warning was determined. On 13 March, he was told the decision on sanction was being deferred, and he wrote to Ms Farquharson and Human Resources twice after that, including making reference to the January warning. He was then afforded the opportunity to make representations to Ms Farquharson as part of the disciplinary process when he was asked if he wished to attend a further meeting. Accepting the ET was wrong at the liability stage to ask whether the appeal was likely to succeed, it could not be said the Claimant had been denied natural justice.

The Claimant in Reply

1. The test of fairness required consideration of the facts known by the dismissing officer. Even if it could be inferred that Ms Farquharson reasonably did not know of the extant appeal, that did not absolve the Respondent as a whole. The question was: ought she to have known of it? The Claimant had not concealed the fact; he had referred to the matter in his representations after 13 March, but it seemed that Ms Farquharson had taken no account of those.