The claimant was dismissed after the respondent found that she had obtained unauthorised access to two files from the HR department, allegedly containing information about the way in which the two people were qualified. The claimant was represented by a trade union officer in the course of the disciplinary investigation, which needed to meet the standard of as much investigation as is reasonable.  It was accepted by the claimant and her trade union representative that no further investigation was reasonable. At the ET, the EJ refused to allow covert recordings of meetings that the claimant had made during the disciplinary process, saying that ‘those of the respondent’s employees involved in the investigation/disciplinary process were unaware of these recordings and had no possible reason to be aware of them.  We therefore find that they are irrelevant to our considerations…’. The claimant’s claim was dismissed and she appealed.

The EAT upheld the ET decision. Given the concession in the internal proceedings that as much investigation as was reasonable had been conducted, the Employment Tribunal properly exercised its discretion to refuse to admit covert tape recordings of meetings the claimant attended.

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Appeal No. UKEAT/0413/12/SM

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 22 October 2012

Before

HIS HONOUR JUDGE McMULLEN QC; MR D J JENKINS OBE; MRS M V McARTHUR FCIPD

LEEKS (APPELLANT)

ST GEORGE'S HEALTHCARE NHS TRUST (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR JONATHAN LEWIS (of Counsel)

Direct Public Access Scheme

For the Respondent
Written Submissions

PRACTICE AND PROCEDURE – Case management

UNFAIR DISMISSAL – Reasonableness of dismissal

The Respondent was entitled to conclude the Claimant wrongfully handed over HR files of two employees whose qualifications she disputed, and to dismiss her.

Given the concession in the internal proceedings that as much investigation as was reasonable had been conducted, the Employment Tribunal properly exercised its discretion to refuse to admit covert tape recordings of meetings the Claimant attended.

1. This is an appeal by the Claimant in those proceedings against a Judgment of an Employment Tribunal sitting over three days at London South under the chairmanship of Employment Judge MacInnes, sent with reasons to the parties on 6 June 2012.

1. The Claimant and the Respondent were represented by counsel. Today different counsel, Mr Jonathan Lewis, appears for the Claimant and pursuant to a direction of Silber J, written submissions have been presented on behalf of the Respondent by Mr Andrew Midgley of counsel.

1. The Claimant claimed that she was unfairly dismissed. She made whistleblowing claims and outstanding holiday pay claims which were dismissed upon her withdrawal leaving this as an ordinary unfair dismissal claim. The Respondent contended it dismissed her fairly having followed a fair procedure.

1. The issues were plainly set out by the Employment Tribunal in that the Respondent contended that it dismissed her for the following:

"Unauthorised access to the personal HR files of two Trust employees, namely […] or you arranged for someone else to do this on your behalf, and you copied these files and passed the files to the Trust's Counter Fraud Specialist Pauline Lewis."

1. The Claimant appealed against the dismissal of her claim. Directions were given by Silber J who raised the question for a preliminary hearing as to whether the Tribunal was correct in refusing to listen to recordings of investigations conducted by the Respondent into the charge set out above.

1. The legislation is not in dispute. Employment Rights Act 1996 Section 98 requires a potentially fair reason for dismissal; here it is not in dispute that it is conduct, thereafter section 98(4) deals with fairness and provides as follows:

"(4)….the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)–

(a) 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 a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

1. The Tribunal directed itself in accordance BHS v Burchell [1978] IRLR 379 EAT. Mr Lewis accepts at once that a fair reading of the self direction indicates that the Tribunal does not know that the burden of proof is no longer on the Respondent to prove that it has carried out as much investigation as is reasonable, that is stage 2 and stage 3 of the predecessor to section 98(4). This is because the Employment Act 1980 removed that burden. The Tribunal has arguably placed a burden of proof on the Respondent and yet it has discharged it. This may be a minor point but it does add to what we regard as an unpromising start to this appeal which is that Mr Lewis contends as follows:

"13. The Appellant does not submit that the Tribunal should have considered the transcripts in determining whether the Respondent's decision to dismiss the Appellant was within the band of reasonable responses. Clearly, as the transcripts were not known of let alone before the disciplinary hearing panel, they could not be relevant to this issue. The transcripts were not logically relevant to this issue.

14. The Appellant does not seek to rely upon the transcripts themselves in this appeal, but has provided a list of the transcripts that were available to the Tribunal ([93, 93]) as well as sample excerpts from some transcripts 9[78-84])."

1. The facts are unusual. The relevant officer of this Health Authority, Ms Lewis, received an anonymous phone call and then met a person who she did not know and who did not reveal herself. In due course Ms Lewis identified her as the Claimant. The Claimant was making allegations about the way in which two people were qualified. According to Ms Lewis, files from the HR department were handed over to Ms Lewis by the person she identified subsequently as the Claimant. The Claimant accepted in due course, although it has to be said not immediately, that she did meet Ms Lewis and that she did hand over documents to her but not the HR files of the two named persons. In a revised chronology signed on 12 October 2012 the Claimant makes no mention of what, through her counsel, she asserts today, which is that although in her own chronology and the Tribunal's finding, the meeting is dated 25 May 2010, she met Ms Lewis the previous day, 24 May, and handed over documents but not these. As Mr Lewis of counsel very responsibly accepts, there being no mention of it in the chronology and in the findings nor, as far as we can tell, any mention of it hitherto this matter cannot be taken further. We therefore will operate on the basis that the meeting between Ms Lewis and the Claimant when documents were handed over occurred once and once only on 25 May 2010.

1. The Claimant went through a number of stages of the disciplinary procedure and was dismissed. She was represented by a trade union officer in the course of the investigation, which needed to meet the standard of as much investigation as is reasonable. It was accepted by the Claimant and her trade union representative that no further investigation was reasonable, see paragraph 37.

1. This is the concession. It is rightly highlighted by Mr Midgeley in his written submissions with the simple proposition that once a trade union representative in internal proceedings accepts that no further investigation is necessary, it should not be held against an employer that it has failed to carry out as much investigation as is reasonable in the circumstances. The Tribunal rightly, he contends, guarded itself against substituting its own judgment for that of the Respondent when the Respondent had been told on behalf of the Claimant no further investigation was necessary.

1. The real point of the appeal is the withholding of transcripts. The Claimant surreptitiously recorded a number of meetings where she was present during the course of the investigation; she wanted these to go before the Tribunal. The Tribunal dealt with this in the following way:

"One of the bundles - the green bundle - contained transcripts of covert recordings that the Claimant had made of a number of meetings including meetings in the investigation/disciplinary process with which we were concerned. These were disclosed by the Claimant shortly before the hearing. We find as a fact that she never told any of the Respondent's employees involved in the investigation/disciplinary process that she had made these recordings. Those of the Respondent's employees involved in the investigation/disciplinary process were unaware of these recordings and had no possible reason to be aware of them. We therefore find that they are irrelevant to our considerations and we ignored them (however Mr Roberts did make a submission in relation to one of the recordings which we accept as a submission)."

1. Mr Lewis's proposition is that this ought to have been conducted on the lines of a judicial review; all that is going on here is process. He contends it is not necessary to show any effect the transcripts would have had, for this is simply an abstract question of law. His analogy is with judicial review. We put to him the analogy under criminal proceedings although, as it happens, he is experienced neither in judicial review nor in crime where as much investigation should be conducted as is reasonable by a police officer.

1. The point is, however, that the Claimant was party to all of these discussions and if a line of enquiry had been identified during those discussions she was there and she could say to the officer, "Please pursue it". But she was the person who, with her trade union, said no further investigations are needed. Therefore it could not be said by whatever standard, be it judicial review, PACE or Burchell that further investigation was required.

1. We do see some force in Mr Lewis's point that the Tribunal has moved to a non-sequiter in the last sentence of paragraph 6, which is relevance. The fact that the Claimant never made clear to the Respondent's employees that these recordings existed is not the basis upon which the decision could be made. On that point alone there may have been some force in Mr Lewis's argument but it cannot survive the concession, nor can it survive the point made in written submissions by Mr Midgeley which is that none of the officers had this point put to them and knew of the existence of the tapes. When one examines, in accordance with London Ambulance Service v Small [2009] IRLR 563 CA what was the material available to the employer, none of this was because the Claimant had not disclosed it. It was within the Tribunal's discretion to refuse the transcripts.

1. As occurs in so many appeals in our jurisdiction there is a reasons challenge under Meek [1987] IRLR 250 CA. We respectfully disagree with Mr Lewis. This is not a case where the parties did not understand the reasons. This is not a case where Mrs Leeks could say, "I do not know why the Tribunal found against me"; the reasons are pellucid. For all those reasons, we hold that there is no reasonable prospect of this appeal succeeding and we can see no error in the Employment Tribunal's Judgment.

1. At the end of our Judgment it was apparent that Mrs Leeks was pointing out some material which she considered was relevant and which had not been addressed to us by Mr Lewis and so we have given Mr Lewis and the Claimant the opportunity to make the point.

1. It appears to us that there is a firm finding by the Tribunal that the meeting where documents were handed over from the Claimant to Ms Lewis appeared to be on 25 May 2010. It is put squarely in those terms in paragraph 26. It is in terms of around 25 May 2010 in paragraph 10. It is put in the Claimant's original chronology that the anonymous caller met Ms Lewis on 25 May 2010. In the revised chronology signed by the Claimant the same appears. The date is the same and the words now are, "25th May 2010, an anonymous person meets with Ms Lewis and allegedly handed her the HR personnel files of the two people". The Claimant contends before us that there was only one meeting and it took place on 24 May; for that the Claimant invokes the rather vaguer first finding of the Tribunal "around 25 May".

1. The Claimant tells us that in her witness statement she mentioned 24 May. The extract from the index of the bundle which we have before us records a note of Ms Lewis of a meeting on 25 May 2010. We cannot resolve this problem but it is going nowhere. The common ground is there was one meeting, it was either 24 or 25 May and during the course of it the Claimant handed over to Ms Lewis some documents. It is found by the Tribunal that they were the files of the two people.

1. In the principal part of our Judgment we pointed out that the Claimant had not accepted this situation at the earliest opportunity, for the Tribunal found that when it was put to her on 14 January 2011 whether she was that person, she made no comment.

1. At the heart of the appeal is the Claimant's contention about the utility of the transcripts or perhaps the abstract theoretical possibility that there may be something worth further investigation. Looking to the Claimant's note of the transcript, going beyond what our duty is on an appeal, but in order to do justice to the Claimant today, pages 78 to 79 contain what we can only regard as prevarication. The Claimant was offered on four occasions the opportunity to say whether she had handed over the HR files of these two people. She said she had never had a personnel file but did not address the question directly, and so the Respondent was entitled to form the view it did. No procedural error has been committed by the Tribunal in failing to allow these transcripts. Doing the best we can, these do not help the Claimant in any way. We are grateful for this further opportunity to consider what the Claimant was plainly raising herself at the end of hearing. The simple facts are that on a day, either 24 of 25 May, the Claimant handed over documents to Ms Lewis and the Tribunal held the Respondent could reasonably decide that they were the files of the two people. For that reason she was dismissed fairly by the Respondent. This appeal is dismissed.