Document A: Note from Law Clinic Supervisor

From: Law Clinic Supervisor To: Student Adviser

Re: Baell West (Possible Unfair Dismissal Claim)

Date: 18 July 2022

I met with Baell, who is very upset as he has lost his job.

He used to work for Fishponds Services Limited ("Fishponds") and would like to pursue a claim to the Employment Tribunal.

Could you please read through the attendance note of the meeting with Baell and take a look through the documentation which he gave me.

The documents enclosed are:

• meeting note

• letters from the disciplinary process

• a statement from some of Baell's colleagues

• a note issued by his manager about email and internet access

• a copy of Baell's s1 statement of employment particulars

• the ACAS code of practice on disciplinary and grievance procedures [Fishponds use the ACAS Code rather than have a separate policy of their own]

Please could you analyse the documents and let me have a note about Baell's prospects of successfully pursuing an unfair claim in respect of his dismissal. I will then discuss this with Baell at our next meeting.

Can you discuss the following questions in your note:

1. Is Baell eligible to pursue an unfair dismissal claim?

1. Are there any time limits we need to think about?

1. What issues would the Employment Tribunal consider in reaching a decision on a potential claim, and how successful do you think he is likely to be?

1. What compensation might Baell recover if he is successful?

Thank you

LCS

These are the documents

Document B: Meeting Note

Baell Westis 55 years old with a date of birth 15 May 1967. He started working for Fishponds Services Limited in 1990. Until recently he was employed as a company's Sales Account Manager. He was paid a salary of 31,200 a year (500 a week after tax), plus benefits and use of a company car.

Baell worked within the sales office, generating business from new customers; managing the accounts of existing customers, including receiving and managing their orders, deliveries etc. He would spend a considerable amount of time working on his computer.

Because the company has an international as well as national market, Baell would work either dayshift (9 - 5) or the afternoon/evening shift (5 - 12), to speak with international customers. He would work the shifts in accordance with a rota drawn up by the Sales Department Manager, Vienna Jenkins, who was his immediate manager.

Baell was older than the Account Executives working within the sales department, some of whom he supervised. Baell thought the younger Account Executives were not particularly committed to working hard - spending a lot of their time surfing the Internet and accessing their Snapchat, Instagram TikTok and other social media sites/accounts. Baell kept himself to himself, the younger employees thought he was an old eccentric, who enjoyed Welsh heritage and playing bridge (his two favourite pastimes outside of work).

Baell became increasingly frustrated with some of the younger employees spending much of their working day on social media sites rather than working (including Vienna Jenkin's best friend Stacey Shipman), so he complained to Vienna Jenkins about things.

As a result, Vienna Jenkins issued a notice reminding all employees of the existing IT Policy - use of the Internet within the office was for business purposes only; and unauthorised personal use of the Internet would be considered misconduct/gross misconduct depending upon the nature of the material which had been accessed.

Just after Easter, Baell was working on the afternoon/evening shift. He was returning from a coffee break when he saw a number of the younger sales employees chatting and laughing near to his desk but he thought nothing of it.

A few days later, Baell was summoned to see Vienna Jenkins. She explained an anonymous handwritten note had been left on her desk alleging that Baell had been using his computer to access unauthorised websites.

Vienna Jenkins said she had investigated this. She showed Baell a report from the IT Department listing a number of websites which had been accessed from his computer on several occasions. These related to Welsh Festivals, Tom Jones's concert tickets and the history of Llywelyn ap Gruffudd (Baell might view these from home but never at work) and more seriously, a number of pornographic websites; one of which involved naked women standing next to and posing on tractors.

Vienna Jenkins explained that in the light of the recent warning which had been given to the workforce, she would have no alternative but to instigate formal disciplinary action. Baell was shocked by what was happening and didn't know what to say. He simply denied having done anything wrong.

Baell received a letter, inviting him to a meeting with Vienna Jenkins. The meeting was to consider whether there should be disciplinary action against him for the unauthorised access of non-work websites during office hours.

Baell went along to the meeting alone. He would have liked to have someone with him for support but when he asked Vienna Jenkins this was refused.

Vienna Jenkins showed Baell again the report from the IT Department listing the various websites accessed which appeared to confirm that they had been accessed from his computer.

Baell explained that he would never do such a thing. He was the one who had complained recently about other employees making inappropriate use of their PC's in company time. He was suspicious that other employees in the team might have hacked into his computer and set hm up, wanting revenge because he had reported their computer misuse to Vienna Jenkins.

He wondered if this was the group he had seen at his desk one evening and gave Vienna Jenkins the names of the employees he suspected it could be (including her friend Stacey Shipman). He said the CCTV monitors in the office should identify who had been there and this could be checked against the IT report. Vienna Jenkins said that she would look into this and the meeting then ended.

Two days after the meeting Vienna Jenkins wrote to Baell with her decision about disciplinary action. Baell was shocked that he had been found guilty of unauthorised access of non-work websites, including pornographic material and that, as a result, he was to be dismissed.

Baell was shocked that Vienna Jenkins did not believe him and believed other employees instead, including her friend Stacey Shipman, without giving him a further chance to say anything.

Baell is adamant that he did not access inappropriate websites from his work computer.He is sure he would have been found to be "innocent" if Vienna Jenkins had checked the CCTV tapes from the office.Baell is convinced that this would show other employees using his computer to look at these websites.

Baell thinks it will not be particularly easy to find another job, given his age, and is expecting to be out of work for 6 months. He is also very upset about the way in which he was dismissed and the offensive allegations which were made against him.

Document C

Friday 29 April 2022

Dear Baell

Notice of Disciplinary Hearing

You are required to attend a disciplinary hearing at the company's offices on Tuesday 3 May 2022.

This meeting will consider whether you have committed acts of misconduct and/or gross misconduct by accessing unauthorised websites on your work computer and during working hours - namely, aboutWelsh Festivals, Tom Jones's concert tickets and the history of Llywelyn ap Gruffuddand, more seriously, pornographic websites.

If there is any aspect of this process which is not clear, please let me know as soon as possible

Yours sincerely

Vienna Jenkins

Sales Department Manager

Document D

Thursday 5 May 2022

Dear Baell

Notice of Disciplinary Hearing

I am writing to confirm the outcome of the disciplinary hearing which took place at the company's offices on 3 May 2022.

At this meeting, I considered whether you had committed acts of misconduct and/or gross misconduct by accessing unauthorised websites on your work computer and during working hours - namely, aboutWelsh Festivals, Tom Jones's concert tickets and the history of Llywelyn ap Gruffuddand, more seriously, pornographic websites.

You were unable to provide a satisfactory explanation to disprove the evidence set out in a report produced by our IT Department which listed the websites accessed from your computer and the times and dates when this occurred.

After the meeting, I spoke to the employees you accused of hacking into your computer. They gave me a statement (enclosed) which clearly exonerates them and proves you are guilty. I am very shocked that you would blame other employees for your behaviour and suggest they would behave in this way.

I therefore conclude you are guilty of gross misconduct and that I have no alternative but to dismiss you from Fishponds Services Limited's employment.

As a gesture of goodwill, you will be paid one month's notice pay, but will not have to come into the office. Your employment will end on 2 June 2022.

Yours sincerely

Vienna Jenkins

Sales Department Manager

DOCUMENT E

Statement from Baell's colleagues

We are very shocked by the allegation Baell has made, that we hacked into his computer to access non-work websites.

We all deny this.

We do remember seeing pornographic images on his computer screen one evening and were shocked by this.

It was very embarrassing, one of us tried to activate Baell's screensaver, to prevent anyone else in the office seeing the disgusting content, but we could not get this to work.

We are glad the company is taking action against Baell, and hopefully will also take into account the fact that he has made up these malicious allegations against us. It is very unprofessional.

Dawn Sutcliffe, Doris O'Neill, David Gooch, Owain Hughes

Dated 04.05.22

DOCUMENT F

Notice to all staff regarding Email And Internet Access

There have been reports alleging employees are not following the Fishponds Services Limited Internet User Policy, in particular accessing inappropriate websites using company equipment during office hours.

You are therefore reminded that violation of Fishponds Services Limited's IT policy will lead to disciplinary action in accordance with ACAS disciplinary procedures.

You also reminded of the following section of the policy regarding e-mail and Internet access

Vienna Jenkins

Sales Department Manager

Acceptable uses (not all inclusive)

To provide for and facilitate communication with business partners, prospective clients, suppliers, relevant to the employees current job assignment.

To perform research, authorised by the employee's immediate supervisor on subject material relevant to the employee's current job assignment.

Unacceptable uses (not all inclusive)

Gross misconduct

1. To use computer equipment for illegal or malicious purposes.

1. To knowingly or inadvertently spread a computer virus

1. To transmit confidential or "secret" information without encryption.

1. To download, display or transmit sexually explicit materials.

1. To download any screen savers or any unauthorised software without prior approval from United Health Foods Limited IT department.

1. To access or use another employee's computer

Misconduct:

1. To share data not authorised for distribution.

1. To use a computer for personal and or profit making purposes.

1. To download or participate in or play any recreational game.

DOCUMENT G :

Written Statement of Terms and Conditions of Employment

1. Baell Westbegan employment with Fishponds Services Limited on 12 May 1990.

1. No period of previous employment counts as part of your period of continuous employment.

1. You are employed as a Sales Administrator.

1. Your place of work is Fishponds House, Springfields Business Park, Fishponds, Bristol, BS9 2RW.

1. Your pay will be 8,000 per annum.

.

1. You will be paid monthly.

1. Your hours of work are 9-5 Monday Friday with a one hour break for lunch.

1. Your holiday entitlement is 20 days per year pluspublic holidays.

1. In case of incapacity for work your reporting arrangements and entitlement to sick pay are set out in the Company Sick Pay Policy. [not provided ]

1. Details of the Company Pension Scheme are set out in the Company Sick Pay Policy. [not provided]

1. The amount of notice of termination of your employment you are entitled to receive is 1 month.

1. The amount of notice you are required to give is 1 month.

1. Your employment is permanent - subject to 11 & 12 above, and to general rights of termination under the law.

1. There are no collective agreements which affect the terms and conditions of your employment.

1. You are not expected to work outside the UK.

1. If you are dissatisfied with any disciplinary decision that affects you, you should apply in the first instance to the Human Resources Director in writing.

1. If you have a grievance about your employment you should apply in the first instance to the Managing Director in writing.

Dated 12 May 1990

DOCUMENT H : ACAS Code of Practice on Disciplinary Procedures

Introduction

1. This Code is designed to help employers, employees and their representatives deal with disciplinary and grievance situations in the workplace

• Disciplinary situations include misconduct and/ or poor performance. If employers have a separate capability procedure they may prefer to address performance issues under this procedure. If so, however, the basic principles of fairness set out in this Code should still be followed, albeit that they may need to be adapted

• Grievances are concerns, problems or complaints that employees raise with their employers. The Code does not apply to redundancy dismissals or the nonrenewal of fixed-term contracts on their expiry.

1. Fairness and transparency are promoted by developing and using rules and procedures for handling disciplinary and grievance situations. These should be set down in writing, be specific and clear. Employees and, where appropriate, their representatives should be involved in the development of rules and procedures. It is also important to help employees and managers understand what the rules and procedures are, where they can be found and how they are to be used.

1. Where some form of formal action is needed, what action is reasonable or justified will depend on all the circumstances of the particular case. Employment tribunals will take the size and resources of an employer into account when deciding on relevant cases and it may sometimes not be practicable for all employers to take all of the steps set out in this Code.

1. That said, whenever a disciplinary or grievance process is being followed it is important to deal with issues fairly. There are a number of elements to this:

• Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions.
• Employers and employees should act consistently.
• Employers should carry out any necessary investigations, to establish the facts of the case.
• Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made.
• Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting.
• Employers should allow an employee to appeal against any formal decision made.

Discipline: Keys to handling disciplinary issues in the workplace

Establish the facts of each case

1. It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing.

1. In misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing.

1. If there is an investigatory meeting this should not by itself result in any disciplinary action. Although there is no statutory right for an employee to be accompanied at a formal investigatory meeting, such a right may be allowed under an employer's own procedure.

1. In cases where a period of suspension with pay is considered necessary, this period should be as brief as possible, should be kept under review and it should be made clear that this suspension is not considered a disciplinary action

Inform the employee of the problem

1. If it is decided that there is a disciplinary case to answer, the employee should be notified of this in writing. This notification should contain sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification.

1. The notification should also give details of the time and venue for the disciplinary meeting and advise the employee of their right to be accompanied at the meeting. Hold a meeting with the employee to discuss the problem.

1. The meeting should be held without unreasonable delay whilst allowing the employee reasonable time to prepare their case.

1. Employers and employees (and their companions) should make every effort to attend the meeting. At the meeting the employer should explain the complaint against the employee and go through the evidence that has been gathered. The employee should be allowed to set out their case and answer any allegations that have been made. The employee should also be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. They should also be given an opportunity to raise points about any information provided by witnesses. Where an employer or employee intends to call relevant witnesses they should give advance notice that they intend to do

Allow the employee to be accompanied at the meeting

1. Workers have a statutory right to be accompanied by a companion where the disciplinary meeting could result in:

• a formal warning being issued; or
• the taking of some other disciplinary action
• the confirmation of a warning or some other disciplinary action (appeal hearings)

1. The statutory right is to be accompanied by a fellow worker, a trade union representative, or an official employed by a trade union. A trade union representative who is not an employed official must have been certified by their union as being competent to accompany a worker. Employers must agree to a worker's request to be accompanied by any companion from one of these categories. Workers may also alter their choice of companion if they wish. As a matter of good practice, in making their choice workers should bear in mind the practicalities of the arrangements. For instance, a worker may choose to be accompanied by a companion who is suitable, willing and available on site rather than someone from a geographically remote location.

1. To exercise the statutory right to be accompanied workers must make a reasonable request. What is reasonable will depend on the circumstances of each individual case. A request to be accompanied does not have to be in writing or within a certain timeframe. However, a worker should provide enough time for the employer to deal with the companion's attendance at the meeting. Workers should also consider how they make their request so that it is clearly understood, for instance by letting the employer know in advance the name of the companion where possible and whether they are a fellow worker or trade union official or representative.

1. If a worker's chosen companion will not be available at the time proposed for the hearing by the employer, the employer must postpone the hearing to a time proposed by the worker provided that the alternative time is both reasonable and not more than five working days after the date originally proposed.

1. The companion should be allowed to address the hearing to put and sum up the worker's case, respond on behalf of the worker to any views expressed at the meeting and confer with the worker during the hearing. The companion does not, however, have the right to answer questions on the worker's behalf, address the hearing if the worker does not wish it or prevent the employer from explaining their case

Decide on appropriate action

1. After the meeting decide whether or not disciplinary or any other action is justified and inform the employee accordingly in writing.

1. Where misconduct is confirmed or the employee is found to be performing unsatisfactorily it is usual to give the employee a written warning. A further act of misconduct or failure to improve performance within a set period would normally result in a final written warning.

1. If an employee's first misconduct or unsatisfactory performance is sufficiently serious, it may be appropriate to move directly to a final written warning. This might occur where the employee's actions have had, or are liable to have, a serious or harmful impact on the organisation.

1. A first or final written warning should set out the nature of the misconduct or poor performance and the change in behaviour or improvement in performance required (with timescale). The employee should be told how long the warning will remain current. The employee should be informed of the consequences of further misconduct, or failure to improve performance, within the set period following a final warning. For instance that it may result in dismissal or some other contractual penalty such as demotion or loss of seniority.

1. A decision to dismiss should only be taken by a manager who has the authority to do so. The employee should be informed as soon as possible of the reasons for the dismissal, the date on which the employment contract will end, the appropriate period of notice and their right of appeal.

1. Some acts, termed gross misconduct, are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence. But a fair disciplinary process should always be followed, before dismissing for gross misconduct.

1. Disciplinary rules should give examples of acts which the employer regards as acts of gross misconduct. These may vary according to the nature of the organisation and what it does, but might include things such as theft or fraud, physical violence, gross negligence or serious insubordination.

1. Where an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause the employer should make a decision on the evidence available

Provide employees with an opportunity to appeal

1. Where an employee feels that disciplinary action taken against them is wrong or unjust they should appeal against the decision. Appeals should be heard without unreasonable delay and ideally at an agreed time and place. Employees should let employers know the grounds for their appeal in writing.

1. The appeal should be dealt with impartially and, wherever possible, by a manager who has not previously been involved in the case.

1. Workers have a statutory right to be accompanied at appeal hearings.

1. Employees should be informed in writing of the results of the appeal hearing as soon as possible.