Mr Michael Johnstone v Econ Engineering Limited AT A HEARING — 2019

The claimant, Mr Michael Johnstone, had worked for Econ Engineering Limited for 35 years and was dismissed after an investigation into alleged misuse of the works computer and access to documents said to be confidential. The tribunal applied the principles in British Home Stores v Burchell and treated the case as a misconduct dismissal under section 98 of the Employment Rights Act 1996. It accepted that the respondent believed it had identified access to documents and internet activity, but found that the key allegation developed by Mrs Shepherd was that the claimant had emailed unspecified documents from work to his personal email address.

The tribunal found that the claimant had not been fairly informed before the meeting on 20 August 2018 that this was the allegation he had to answer. It held that the letter of 8 August 2018 was ambiguous and did not make clear that the meeting was disciplinary rather than investigatory. It also found that Mrs Shepherd approached the meeting with a preconceived view and that her account of the discussion about Book 13 and other material was not reliable in the respects material to the dismissal decision. On that basis, the dismissal was procedurally unfair.

On the evidence about the underlying material, the tribunal accepted that the claimant had accessed certain documents out of curiosity, including some files that were potentially confidential or personal, but found no evidence that he had actually disclosed any of them or used them inappropriately. It also rejected the respondent's case that the Sophos logs proved prolonged personal email use at work. For the wrongful dismissal claim, the tribunal held that gross misconduct had not been proved, so summary dismissal without notice was not justified.

Remedy was adjourned to a later hearing if not agreed. The tribunal recorded a provisional view that any compensatory award might be reduced by 10 per cent for a failure to comply with ACAS Code provision 9, and then further reduced by 10 per cent for contributory conduct, with a cumulative reduction of 35 per cent. It also said that, even with a proper investigation, it could not assess the chance of dismissal being fair at more than 25 per cent. No final monetary award was recorded in this judgment.