Last week we looked at disability discrimination and whether a sick note from a GP automatically qualified you disabled for the purposes of the Equality Act 2010. This week we will be looking at reasonable disciplinary sanctions and mitigating circumstances in relation to unfair dismissal claims. The case also concerns data protection.

When an employer dismisses an employee, and, the employee begins an unfair dismissal claim, the employee often claims that dismissal did not fall in the range of reasonable responses as per s.98(4) of the Employment Rights Act 1996. The key principals of this test are:

–          The ET must not substitute its own views for that of the Respondent

–          The conduct and its response must be considered by the standards of a hypothetical reasonable employer

–          A decision to dismiss can be unreasonable for other reasons than the decision being perverse, which has its own test.

Therefore, the question this week is:

Can a disciplinary sanction be outside the range of reasonable responses if an employer has chosen the sanction based on a decision making matrix?

Ms Mughal, the Claimant, was a Customer Service Officer at a Jobcentre Plus, for the Department of Work and Pensions, the Respondent. The Respondent is a large Government department that holds personal information on large portions of the general public.

As such, the Respondent has policies in place for handling personal data and also employee computer use. This includes not checking the personal information of friends, family, celebrities or any other customer of the Respondent without express authorisation. The Respondent’s handbook stated a breach of this policy was serious and could result in dismissal for gross misconduct.

The Respondent also had a decision matrix that would help decision makers enforce the correct disciplinary sanctions to employees who breached its policy. This included dismissal for gross misconduct for any employee who browsed confidential data of others for personal gain or without authorisation. Mitigating circumstances included scenarios where duress or fear of violence were present.

Furthermore, whenever an employee accessed confidential data a warning flashed on their computer to warn them that what they were viewing is confidential and disciplinary action could result from looking at the data without reason.

Prior to her dismissal the Claimant had an unblemished disciplinary record in over 15 years of service. She also had a number of personal issues including stress, depression and financial problems, this resulted in her renting out a bedroom to a private tenant. The tenant failed to pay his rent on time which exacerbated the Claimant’s financial problems.

At work, the Claimant accessed her tenant’s records and discovered he was in receipt of housing benefit. She then called the housing benefit office and, using the tenant’s confidential data, posed as him in order to confirm his benefits had been paid.

Following this she then sent an email to the housing benefit office stating she was the tenant’s landlady. She referenced numerous pieces of her tenant’s data and falsely claimed the tenant was being investigated by the Jobcentre for fraud. When she was finished the Claimant (allegedly) immediately went to her line manager and confessed to her sins.

The Claimant’s tenant complained to the Respondent about the Claimant accessing his data and the Claimant was investigated, but not suspended, by the Respondent. During the investigation the Claimant admitted to the breach and stated that she was under financial pressure.  A disciplinary was held and the Claimant was dismissed.

The Claimant’s appeal was dismissed and she commenced the litigation. The ET considered whether the decision to dismiss fell within the band of reasonable responses. The Judge held that whilst the Claimant had knowingly committed acts of gross misconduct there were several mitigating circumstances, including her length of service, clean disciplinary record, personal issues and her immediate confession of wrongdoing and subsequent apology.

The ET held that the Respondent’s decision matrix was too rigid and that the Claimant’s mitigating circumstances meant the decision to dismiss was outside the band of reasonable responses and thus unfair.

The Respondent appealed citing the fact the Claimant did have personal gain, the rent money, at mind when accessing the information. Moreover, neither the Claimant, nor the Respondent’s witnesses, were cross examined about her immediate admission of misconduct after accessing the data, making it impossible to determine whether the event took place. The EAT allowed the appeal agreeing with the Respondent.

The takeaway point:

In this case no, a sanction from a decision matrix was not an unreasonable response because the ET had wrongly interpreted the meaning of personal gain and also not established the events. If these two points had been done correctly the decision may well have been fair because there would have been a large amount of mitigating circumstances.

Any employer considering disciplinary sanctions against any employee should always consider any mitigating circumstances such as health, length of service, prior disciplinary issues etc. because it may impact on whether the decision to dismiss was fair or not. However, if the misconduct is serious enough then no set of circumstances will mitigate the offence.