In person – assisted by a friend, Ms Smith For the v Respondent — 2018

The claimant was an HR Business Partner with access to ESR, a database containing personal and employment information. In early 2018 the respondent discovered that, since April 2017, she had accessed colleagues’ records on more than 200 occasions, including 139 accesses to HR colleagues’ records and 27 accesses on 22 December 2017. The claimant accepted the accesses were not operationally required. She was suspended, investigated, and later dismissed for gross misconduct after a disciplinary process that included Occupational Health input and an appeal.

On unfair dismissal, the tribunal accepted that the reason for dismissal was the claimant’s conduct. It found the dismissing officer genuinely believed the misconduct had occurred, that the belief was based on reasonable evidence after reasonable enquiry, and that dismissal was within the range of reasonable responses given the confidentiality issues, the scale and frequency of the accesses, and the claimant’s inconsistent explanations for her conduct. The tribunal also rejected a number of procedural criticisms, including points about the absence of live evidence from the dismissing officer and investigator, the use of recordings rather than transcripts, and the role of HR staff in the process.

On wrongful dismissal, the tribunal found that the respondent had proved gross misconduct and so the claimant was not entitled to notice pay. On the disability discrimination claim, which proceeded only under s.15 Equality Act 2010, the tribunal accepted that the claimant was disabled by depression and anxiety but found she had not proved the necessary causal link between that disability and the conduct that led to dismissal. It considered the medical evidence, including Occupational Health material, but concluded that it did not positively establish that the claimant’s condition caused or contributed to the ESR accesses. Because all claims failed, no remedy was awarded. The tribunal noted that, had it found dismissal unfair, it would have treated compensation as 100% contributed to by the claimant’s conduct and would have reduced the basic award by 66%, but those were hypothetical findings only.