Case Number: 2201475/2006

Dates of Hearing 6 to 8 and 23 and 24 November 2006; in Chambers on 15 December 2006, 16 January & 6 February 2007.

REASONS OF THE EMPLOYMENT TRIBUNAL

1 Introduction Desmond Nigel Heemskerk was employed by the

Respondent from 6 January 2003 to 17 March 2006 as a Communications Officer.

He claims unfair dismissal in that he says he was dismissed from that employment without proper reason. The Respondent denies that they unfairly dismissed him, asserting that he was dismissed because of misconduct or some other substantial reason, namely that he had acted in such a way so as breach the term implied into all contracts of employment, conveniently referred to as that of trust and confidence.

2 Issues

Unfair dismissal

2.1 Given that dismissal is agreed, on what grounds was the Claimant's

employment terminated?

2.2 Was termination for a reason potentially fair within section 94 of the

Employment Rights Act 1996 and, in particular, for misconduct; or for some other substantial reason, namely that the Claimant was in breach of the term implied into all contracts of employment that he would not act in such a way, without reasonable cause, calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties?

2.3 If for misconduct, did the Respondent honestly believe that the Claimant had

misconducted himself based on reasonable grounds following a reasonable investigation?

2.4 If for a potentially fair reason, was the Respondent's decision to dismiss

reasonable in all the circumstances, and in particular within the range or band of responses that a reasonable employer would have considered appropriate?

2.5 In any event, was the procedure whereby the dismissal was effected in itself

fair? Insofar as there was any failure by the Respondent in reaching the decision to dismiss, was any such failure cured by the subsequent appeal?

2.6 Alternatively, did the appeal convert what otherwise would have been a fair

dismissal into an unfair dismissal?

2.7 If no, has the Respondent shown that they would have decided to dismiss the

Claimant if they had adopted properly the procedure?

2.8 If unfair, what is the appropriate compensation?

3 The Tribunal noted that it was not required to consider whether or not the

alleged misconduct was perpetrated. The question for the Tribunal is whether the

Case Number: 2201475/2006 Respondent formed a genuine and reasonable belief founded on a reasonable investigation providing them with reasonable grounds for entertaining that belief.

4 Evidence

4.1 The Tribunal heard evidence on behalf of the Respondent firstly from its

General Secretary, Derek Simpson. We also heard on the Respondent's behalf from the Director of Legal Services, Georgina Hirsch; from the Assistant General Secretary, Doug Collins; and from the Deputy General Secretary, Tony Dubbins.

4.2 The Tribunal had reservations regarding the evidence given by Ms Hirsch. Rather than gather them in detail here we have commented where appropriate when discussing the facts found and our conclusions. However in general terms Ms Hirsch's evidence was unconvincing because not only had she failed to take the opportunity offered for the original leaked documents to be examined, she had overlooked the fact that even at the time of her investigatory interview she knew at least one perhaps two of the documents were hard copies, that is made directly from the originals rather than electronic (soft). Because she had focused on the electronic nature of the documents she had failed to look at the alternative ways in which documents could have been obtained and leaked and almost dismissed without consideration of the possibility that Mr Gomez had leaked the documents. She accepted that in making her preliminary assessment of the case she had jumped to a conclusion. However by the time she gave evidence to the Tribunal Ms Hirsch fairly volunteered that she had got things grossly wrong. She agreed she had not looked at the documents as critically as she ought to have done. She had not looked at the documents carefully; she had chosen to reject an opportunity to look at the originals; thereafter she had only looked at bundles of documents prepared for the disciplinary hearing and not the original, critical documents. She had never considered it possible that somebody had entered her office notwithstanding that she was forgetful about her keys a circumstance not mentioned until her examination before the Tribunal; she had not seen there was a possibility that somebody had obtained documents in that way. She recognised that as some of the documents were hard copies they might have been taken from her cabinet. She had completely missed when in the course of her investigation the potential significance of Gomez' involvement. She was horrified when she realised that some of the leaked copies actually had her handwriting on them.

4.3 There was one further matter which gave concern regarding Ms Hirsch's

evidence namely that she submitted her statement of evidence only after she had received the statements of evidence of the Claimant rather than producing it prior to exchange and thus in ignorance of what the other witnesses had written.

4.4 Evidence was given by Mr Heemskerk who called the Union's Research and

Policy Officer, Colin Martin Adkins; and we read the statement of David Beaumont who edits the independent website, www.amicus.cc.

4.5 The Tribunal went on to consider evidence relevant to remedy, the

Respondent calling Susan Elaine Jeary, a lay member of the Union; Saba Mozakka, a union communications officer; Mr Simpson being re-called to give evidence on this topic; and the statements of Alan Rutherford and Chris Weldon being agreed. This concluded the evidence on remedies for the Respondent, save that it was agreed they should call Mr O'Brien should they be found liable and a remedies hearing become necessary.

4.6 The Tribunal was provided with two bundles of documents, each running to

over 400 pages.

4.5 Following the Tribunal hearing the Tribunal was alerted to the possibility that

one of the witnesses appearing before it and given evidence on behalf of the Respondent might be a member of the London Central panel. Enquiries were put in

Case Number: 2201475/2006 hand and this was revealed to be the case. It transpired that the witness Douglas Collins on the panel of Members for the Tribunal sitting at London Central had not sat for over two years and had neither personal nor professional knowledge of the lay Members or of the Chairman comprising the Tribunal. He had never sat in Tribunal at the sitting centre in current use (Victory House) and upon this information being revealed to the Claimant confirmed that he was content for the Tribunal to continue to sit in the matter as he did not consider, in the circumstances, that there was any potential for bias on the part of the Tribunal.

5 Facts

The Tribunal found the following relevant and material facts:-

5.1 Des Heemskerk came to work for the Respondent when as a member of the

Union he and two others (whose relevance will be mentioned later - Cathie Willis and Jimmy Warne) had been active in supporting Derek Simpson in his campaign for election to the post of General Secretary. Following the campaign, the Claimant joined the Respondent on 6 January 2003 as a Communications Officer. He had considerable skills in this regard and his work was well received by the Respondent. Both Mr Heemskerk and Mr Simpson were part of a group within the Union which was known as the Unity Gazette, members of which would meet from time to time. The Claimant's politics might be described as hard left and Mr Simpson, in appointing him, indicated that he should not utilise his position with the Union to promote that sort of political activity, leaving that at the door at work and keeping it to his private life. The only apparent transgression of that requirement seems to have arisen when Mr Heemskerk passed a copy of the hard left magazine 'Socialist Appeal' to a coworker whilst he was working at the Respondents' Moreland Street office, resulting in a ban from that building by a senior union officer - Lucy Anderson. The Claimant was redeployed to the King Street building. He was not in any way disciplined. It is clear that for the vast majority of the time the Claimant worked with the Respondent, he completely fulfilled their requirements and expectations of him.

5.2 The Claimant had a reasonably high level of skill and knowledge regarding IT. Indeed the Respondent had utilised his skills during the course of an investigation of suspected problems at their Derby office.

5.3 The Respondents' and in particular Mr Simpson's and Ms Hirsch's belief in Mr

Heemskerk's expert skills regarding IT made them highly sensitive to subsequent actions by him. Their heightened concern stemmed from an incident towards the end of 2003.

5.4 The Claimant found that a number of Mr Simpson's and Ms Hirsch's private

computer files were accessible on the union's intranet, unprotected by passwords and thus open to anyone finding them. It transpired on investigation that these private files had mistakenly been transferred by IT personnel working on the system to the public network when they were in the process of making a backup. Immediately upon discovering the vulnerable information the Claimant telephoned Mr Simpson's secretary requesting an urgent meeting. He did not wish in the open-plan office from which he was making the call to specify the nature of his concern. He raised that concern face-to-face with Mr Simpson as soon as an appointment was available - two/three days after he had first discovered the material. The retention of that knowledge for that period of time in no way enhanced its value to the Claimant. The material he had found he could easily have copied within a matter of seconds if he wished to make use of it to the detriment of the Union or its officers. And he could have remained silent, continuing to access the files had he wished.

5.5 Nonetheless Mr Simpson and Ms Hirsch, were highly suspicious of Mr

Heemskerk's action in finding the files in the first place and his asserted genuineness and motivation (namely to enable them to cure the breach of security), since he also utilised material contained in those private files to raise a number of issues with Mr

Case Number: 2201475/2006 Simpson, in extremely adverse, critical terms. The Claimant for example challenged Mr Simpson as to the basis upon which the General Secretary was to occupy Union property beyond his retirement; and reference was made to a case involving another employee - Les Bayliss - who had been suspected - but later cleared - of misappropriation. Both Mr Simpson and Ms Hirsch were displeased to learn that he had read what obviously on its face was private. It is clear that the fact that the Claimant had read the files materially affected Mr Simpson's trust in him. Indeed Mr Simpson blames this incident for the rapid deterioration in his personal relationship with the Claimant to the extent that thereafter he says they barely spoke.

5.6 In about May 2003 Robert Gomez, who had previously been Chief Executive

of the Union but was then Charity Manager, advised Mr Simpson of concerns he had about Les Bayliss's relationship with an organisation called Express Linkup. The matter was investigated and nothing untoward was discovered. Having dealt with the matter, on 17 June 2003 Mr Simpson wrote to Mr Bayliss a private and confidential letter in which, whilst confirming Mr Bayliss's exoneration and emphasising that the matter had been not dealt with as a disciplinary issue, nevertheless reminded Mr Bayliss of the need to ensure the utmost propriety when dealing with the Amicus AEEU finances. The letter also made reference to the existence of people within the Union who would have misused the detail of the matter to the disadvantage (as seen by Mr Simpson) of the Union, had they been aware of the facts.

5.7 In late May/early June 2005, another member of the Union - Jimmy Warne-

alerted Mr Simpson to concerns he had regarding Mr Bayliss and his honesty. Mr Simpson on 20 June suspended Mr Bayliss and appointed to investigate the allegations Ed Sweeney and Tony Dubbins - both Deputy General Secretaries. On 5 July they wrote to the Claimant, asking him to make an appointment to be interviewed. The investigation referred back to documents and file notes from 2003 regarding Mr Bayliss, since it seemed to Mr Simpson there might be a connection.

5.8 On 28 April 2005 Robert Gomez - formerly Charity Manager - wrote a letter to

Mr Simpson complaining about the structure and organisation of the Union in regard to him, indicating that with deep regret he relinquished his post as Director of Education. Having received no reply, on 19 May 2005 he wrote expressing his exasperation at what he saw as Mr Simpson's lack of interest in maintaining a reasonable dialogue with him. The letter contained further complaints about his relationship with the Union and in particular Mr Simpson suggesting a meeting. On 25 May Mr Simpson responded to Mr Gomez, doing so in very forthright terms. The letter was drafted by Georgina Hirsch. Far from offering a meeting, Mr Simpson said that he found Mr Gomez's reaction to the alleged lack of response to be immature and unbefitting an employee of Mr Gomez's status, challenging his judgment and reliability and questioning his capability to hold any senior role in the Union. Mr Simpson characterised Mr Gomez's comments as rude, offensive and wrong saying that he had been asked to take the post of Director of Education as it better fitted the salary he had been allowed to retain; and that Mr Simpson considered that Mr Gomez was in fundamental breach of contract giving the Union the right to dismiss him. Having firmly put the Respondents' view of Mr Gomez's conduct to him, Mr Simpson accepted on the Union's behalf the termination of the contract by Mr Gomez's repudiatory breaches. If Mr Gomez's employment had not terminated before, then certainly it would have on 26 May 2005 - the date by which he would have received Mr Simpson's letter.

5.9 Mr Sweeney and Mr Dubbins concluded their investigation, which Mr Simpson

believed to be very thorough. They tried to speak to Mr Gomez, but he did not .

respond. They had concluded that there was no evidence to substantiate any of the allegations against him. Mr Bayliss was therefore invited to return to work (having been suspended when the allegations were first levelled).

Case Number: 2201475/2006 5.10 Mr Simpson was therefore less than happy when the www.amicus.cc website published an article on 25 August 2005 under the subheading "When General Secretaries turn bad". A Union member - David Beaumont - edits a site (www.amicus.cc) - having set it up to monitor the conduct of the Union and its officials. It frequently was adversely critical of what Mr Beaumont regarded as unacceptable procedures and actions by the union leadership. The article accused the investigation of incompetence and being a whitewash, repeatedly so suggesting and asserting that the Union under Mr Simpson's leadership was corrupt. There were other more personal slurs. The allegations were based on documents leaked from private headquarters files, and anonymously supplied to the website operator. The documents passed to the website operator, Mr Beaumont, were a letter of complaint from Express Linkup; a memorandum of the interview with Mr Bayliss; Derek Simpson's letter to Express Linkup, post the investigation; a memorandum indicating that there was "no evidence whatsoever against Mr Bayliss" and Derek Simpson's letter to Mr Bayliss confirming that the inquiry had exonerated him. The memorandum of interview with Mr Bayliss and the copy letter from Mr Simpson to Mr Bayliss were amongst those documents that the Claimant had notified to Mr Simpson as having been inadvertently made available on the public network (Intranet). (In a later piece the following September, following the National Executive Council meeting, the website admitted in the light of information then given that some of the criticisms earlier published were incorrect).

5.11 The fact that following the reinstatement of Mr Bayliss adverse and what Mr Simpson considered to be wholly inaccurate criticism of the Union, its officers and indeed of him had been published on the Amicus website caused him great concern. He reported to the General Purposes and Finance Committee of the Union at its meeting on 1 September 2005 the investigation into the allegations against Mr Bayliss and its outcome. He also outlined to the committee that a piece had appeared on the Beaumont website making untrue and defamatory allegations, including that the Union had instigated a cover-up. He reported that the Beaumont site had published a number of internal documents, all of which he had previously supplied to the investigators before they started their task. It appeared to him that copies supplied to Mr Beaumont may have been obtained illegitimately from an employee of the Union. The committee resolved amongst other things (including accepting the report and action regarding Mr Bayliss) that:

"The General Secretary be authorised to take the necessary steps to investigate the source of the defamatory allegations and unauthorised disclosure and circulation of internal union documents".

That recommendation was endorsed at the subsequent meeting of the National Executive Committee (the governing body of the Union) on 7 September 2005. At the meeting of the NEC Mr Simpson spoke in passionate terms about those individuals whom he considered were undermining - unfairly undermining - him and the Union leadership. It was clear from his remarks that he suspected certain individuals of having been complicit in disclosing material without authorisation to the Beaumont website. Indeed the following day those three people, including the Claimant, were suspended by the Union pending investigations. Mr Heemskerk was informed of this by a letter dated 8 September 2005 in which it was indicated that the suspension might include an investigatory meeting of which he would be notified; areas of investigation were broadly described as including IT, telephone usage and call records. He was asked to divulge his computer password and mobile telephone and locking code by return (which he did) and was told that during the period of suspension he must not attempt to visit any of the Union's offices nor communicate with officers or staff. If he needed to have contact with the Union, he was told to do this through the head of personnel.

Case Number: 2201475/2006 5.12 The Claimant was warned that if the investigations resulted in him being invited to a disciplinary hearing, he would be provided with the full details of the allegations well in advance and would be able to contact a representative as

provided for by the Union's disciplinary procedure.

5.13 Georgina Hirsch was appointed as the investigating officer. She was aware of the background and drafted the investigatory report, giving legal advice on questions raised with her from time to time. Prior to the immediate events with which the Tribunal is concerned, Ms Hirsch's particular knowledge of the Claimant rested in the fact that he had looked at her personal files, those which had been inadvertently left unprotected on the Union's computer server-as described earlier. She was, as she said, wary of him after that. She believed that the General Secretary - Mr Simpson had been lenient in not taking disciplinary action against the Claimant over that access to their documents. Ms Hirsch admitted to being very upset that the Claimant had gained such access. She materially assisted the General Secretary by putting together bundles of documents for the Deputy General Secretaries to consider during their investigation in Mr Bayliss's case. She had retained some information regarding that case on her computer files. That included the memorandum subsequently displayed on the www.amicus.cc site. She was less than happy - perhaps understandably - that albeit she and the General Secretary considered that the complaints regarding Mr Bayliss had been properly investigated with reasonable outcomes, this was not the view taken by others and in particular those she believed were feeding the Amicus website run by Mr Beaumont. Ms Hirsch was aware when she commenced her investigations that a thorough scientific examination of the Claimant's computer had revealed nothing of significance in regard to the leaking of the documents. The report was included in the disciplinary bundle by her although the Respondents had made it clear that they were not going to rely on it. She explained that the Claimant, and the two colleagues suspected with him, had been suspended to avoid the risk of them tampering with potential evidence on their computers - or possibly worse. She chose not to give them reasons for their suspension to avoid them raising technical arguments later, considering because of the nature of their suspected clandestine activity that there was perhaps much more to discover than was then known. She did not address her mind to the importance or otherwise of laying charges at that point. She believed that they should have all the allegations of evidence against them in good time to prepare and present their defence at any disciplinary hearing (if they were not allowed back to work without a hearing). She was confident they would have this. The tenor of her evidence regarding her action at that time, as reinforced by the questions she put to the Claimant during the investigatory interview and her frequent references to him having an opportunity at the next hearing to deal with issues, was that she had prior to commencing her investigation and irrespective of its outcome, expected that a disciplinary hearing would be inevitable.

5.14 Ms Hirsch did not consider that the purpose of her investigation was to explore the issues; as she told the Claimant at the start of the interview" ... there will (emphasis supplied) be a disciplinary interview in which you will have all of the allegations and all of the relevant evidence ... time to prepare .... ". Ms Hirsch did not see her role as the same as that of the investigating officers who had investigated the Les Bayliss case. She did not consider it was her task to adjudge the evidence, consider whether there truly was a case for the Claimant to answer and then make a recommendation about the nature of disciplinary action, if needed, and penalty. She saw that as the function of the disciplinary hearing and Doug Collins' role after he had had the chance to hear Mr Heemskerk's representations and evidence in person.

She believed she needed only to consider whether or not the evidence was sufficient to identify the appropriate charges, if any, and ensure that charges were not laid if

Case Number: 2201475/2006 there was no basis to support them. That was the basis upon which had drafted a charges letter and sent it to the Claimant. The charges laid against the Claimant in that letter were as follows:

"A Serious Breach of Trust

By an unauthorised accessing of data and unauthorised disclosure of that data and/or the contents thereof including confidential contents:

1. accessing the private computer drive of the General Secretary without

permission

2. accessing the private computer drive of the Senior Legal Adviser without

permission

3. examining the contents of those drives

4. taking hard or soft copies of files from those drives, including files relating to

Express Link-Up and Les Bayliss

5. unauthorised disclosure to others of information on those files, in additional

breach of trust in that the disclosure entailed

a. interference in the investigation into a union employee, and thereafter included

b. disclosure of information to David Beaumont for p'ublication on his website and

c. distribution of copies to NEC members with a view to inappropriate political

interference with the governance of the union.

Charges under 'serious breach of trust' in relation to using working time to liaise with others to destabilise and possibly remove the senior officer of the union,

6. by assisting in collection and dissemination of information likely to harm the

General Secretary, and

7. plotting the legal removal of the General Secretary from office with a view to

replacing him with a preferred alternative individual

8. breach of instruction not to have contact with other employees during

suspension. Had contact with Cathie Willis and Jimmy Warne, including re discussion of leafleting TUC re their suspensions.

9. General Breach of Trust in course of work by attempt to conceal activities

undertaken on work computer. Such attempts going beyond normal and appropriate house keeping, i.e. saving numerous items to external drives without saving on work drive, and conducting substantial correspondence via external e-mail facilities including freeserve and Wanadoo.

B Bringing the union into disrepute

10 Aiding and abetting the drafting and circulation of a leaflet at the 2005 TUC

Congress containing false and misleading statements about the actions of the employer in suspending CW, OH and JW, such as was likely to bring the employer into disrepute.

C Fundamental breach of trust and confidence by:

11 Undermining the management of the union, including but not limited to the

General Secretary, by your own actions and additionally by working with others, particularly Cathie Willis and Jimmy Warne, including during work time. This undermining included:

o being party to an ongoing attempt to destabilise the leadership of the union in response to the lifting of the suspension of Les Bayliss and his return to his role as AGS. Such response including

· the plan to remove the current General Secretary from post as described by Des Heemskerk to Brian Gallagher and others. This ongoing attempt at destabilisation also including

· directly, or in common purpose with others, providing misleading information about

Case Number: 2201475/2006

o the suspensions,

o the actions of the General Secretary,

othe investigation and report into Les Bayliss, and o the matters concerning the union's charity

to the press and to David Beaumont for his website .

· Misinformation to the press falsely suggesting that the suspensions were linked to support for the T&G by the suspendees was a direct attempt to influence the merger talks .

· The T&G support allegations, and the leaflet circulated at the TUC, and made available from David Beaumont's website, were also attempts to inappropriately involve people from outside the union in internal union management matters.

o seeking to discredit the General Secretary by being a party to the provision of documents, anonymously, in relation to the investigation into Les Bayliss, without raising these documents with the General Secretary, either in the initial complaint or at any time thereafter; such provision being aimed at discrediting the General Secretary if he had not already provided those documents to the investigators (which he in fact had done).

D Flagrant failure to follow an instruction from a line manager or other relevant

senior officer/staff member by communicating with other employees of the union following suspension, including by discussing and sanctioning the leaflet regarding the suspensions which was circulated at TUC Congress 2005, and which was calculated to bring the leadership of the union into disrepute".

5.15 Although Ms Hirsch did not initially consider herself to be the investigating officer, following a grievance dealt with by Deputy General Secretary - Ed Sweeney during which he found that the Claimant should be given a full investigatory report and that the disciplining officer should approve the charges, Ms Hirsch agreed to investigate further and provide such a report. Only then did she look at more evidence - the way she put it the evidence in more detail - and especially at the Claimant's computer. That, she said, was the reason why he had more evidence presented against him and charges specifically relating to what was found on his machine. This was despite the fact he had been told initially that no charges would be laid regarding the computer. So it was that the management case was fully in writing prior to the disciplinary hearing.

5.16 Whilst the Claimant and his union representatives were told they could not approach any witnesses, which they wanted to do, none was to be compelled to attend the hearing. In fact witnesses were not called and the Claimant's wish to cross-examine them thus defeated.

5.17 Ms Hirsch decided not to initiate a full computer survey of all 800 employees because previous experience had demonstrated to her that not only was it timeconsuming and expensive but she should focus her inquiries on those people to whom other circumstantial evidence pointed. In any event she was aware that a lot of people (from earlier investigations) forwarded work from their work computers to their homes or remote e-mail addresses from which things could be forwarded without the Respondent being able to trace it.

5.18 With regard to Robert Gomez a person who clearly should have fallen under consideration as the Tribunal explains later, Ms Hirsch decided that as he had already left long before the documents appeared on Mr Beaumont's website - but ignoring that he quit some years after they had been transferred onto the public part of the Intranet -he could not have been the source of those. She also believed that in any event his computer - having being passed on to others after he left - would have had its memory wiped. Her view that Mr Gomez was not the source of the leaked documents was inspired by her belief, indeed certainty, that they were

Case Number: 2201475/2006 sourced from her and the General Secretary's private files. As Robert Gomez would never have had access to the particular server he so she reasoned could not himself have obtained those documents. And given the Claimant's IT skills and his earlier access to the private files she assumed he had in similar fashion accessed all the leaked material in that way. This of course was a false assumption and a gross error which she recognised only a matter of weeks before the hearing before the Tribunal. Ms Hirsch also felt that there would be little point in pursuing Mr Gomez, or even considering him as a potential witness as he had refused to help the investigation

into Mr Bayliss - an individual whom he did not like.

5.19 The Tribunal was concerned to observe the attitude of Ms Hirsch in giving evidence. Although she in her statement denied an assertion by one of the trade union officials that she had, and had adopted during the investigation a bullying nature/ manner, the Tribunal was not surprised given her demeanour even when giving evidence that she could be so conceived, particularly when she was doing the investigation, on home ground. The Tribunal was also unimpressed that she felt it necessary to repeatedly protest how important telling the truth was to her because she was qualified lawyer. She went so far as to say she thought that meant that her word was obviously more reliable than the word of others. She then, however, was forced to admit that she had made mistakes when investigating, firstly because of her residual and substantial distaste at the Claimant's earlier access to her private documentation. For this reason she assumed that the documents which were produced on the www.amicus.cc website in August 2005 had been similarly accessed (and by him). This truly was one of the main planks of the Respondents' case; but it was, as mentioned, only a matter of a few weeks before the Tribunal Hearing that she recognised that two of the leaked documents were copies of actual documents bearing her own handwritten notes. Thus they had been accessed physically not electronically. Ms Hirsch, it transpires, had written notes on the documents copies of which later appeared on the website. On a memo marked "By hand" from the General Secretary to Les Bayliss she had written "Handed over copy from Derek Simpson direct. On an original letter from the General Secretary to Mrs Ryan, appeared a note written by her: "Note copy to her went on headed. Copy letter to Les held by GH in Amicus file at home". That letter (of 17 June 2003) was copied to Robert Gomez. During her evidence before the Tribunal, Ms Hirsch accepted (as she had during the investigatory meeting but then later overlooked) that indeed that letter could have found its way to the www.amicus.cc site from Robert Gomez. Further, published on the website was a copy of a letter from Mrs Ryan to Mr Robert Gomez, a letter which bore Ms Hirsch's signature. Ms Hirsch conceded that, had she scrutinised the website carefully or properly, she would have recognised that she was seeing a copy of an actual document, rather than an electronic record of that document, as it bore that signature. She explained her failure to do this by saying she had not looked at the documents properly but went "charging off" when given the charge by Derek Simpson to investigate.

5.20 Ms Hirsch went on to explain why she had not focused in sufficient detail on the documents on the website and not addressed her mind to them and the site in her investigatory report. She rather felt that if the nature of the documents were so significant than the Complainant would himself have drawn her attention to it. It was apparent during her investigatory interview of the Claimant that she was aware that there was at least one document that had not and could not have been taken directly from her computer - as it was not filed on the machine. She said during that interview of the Claimant that she suspected that Robert Gomez was the potential source of that leak. But she ruled out Gomez as a possible source of the leaks of the other documents because to her knowledge he had not had access to all of the documents and in particular to her computer. Although she had been told by Mr

Case Number: 2201475/2006 Warne that Gomez had leaked the document to him she did not consider he was the most obvious suspect and chose not to interview him. As said, he had left the employ of the Respondent months before being totally un-co-operative when she had endeavoured to speak to him regarding the Bayliss issue.

5.21 The leaked documents had been received by Mr Beaumont in July 2005. When he learned of the Claimant's suspension Mr Beaumont got in touch with Ms Hirsch by letter offering to allow Ms Hirsch to examine the documents so that she could establish the source. It was Mr Beaumont's intention to enable the Respondents to identify that they were investigating people innocent of the leaking. Ms Hirsch responded by suggesting that the material was forwarded to the head of personnel- Tony Ayres - but this was not acceptable to Mr Beaumont. He was not prepared to put the true leakers at risk - he wished to see justice done as regards the employees then suspended but not to expose his sources. He suggested that an acceptable way for this to take place was for an independent third party to examine the documents in detail and thereby to ascertain their source. He advised that the documents bore identifying marks which had been removed prior to publication. Ms Hirsch whilst noting his views refused to enter a dialogue with him.

5.22 Although Ms Hirsch had the Claimant's computer checked she did not have Gomez's computer checked because she assumed that it would have been wiped having been retained by the Respondents when he had left them. She did not check to see if her assumption was correct; neither did she check Gomez's telephone records at the time to see whether or not they revealed contact by him with Mr Beaumont. Having denied that she had checked the Claimant's telephone records for a period of two years, on being referred to the documents she accepted that she had in fact done so.

5.23 Mr Beaumont in his letter to Ms Hirsch emphasised that he had removed identifying marks prior to publication and that the original documents were much more legible than those portrayed on the website. He expressed surprise that she had not looked and did not seem to wish to look at such "vital evidence". Ms Hirsch wrongly assumed that the identifying marks were electronic - not physical. The basis for this assumption is unclear. Ms Hirsch accepted that her failure to seek to scrutinise the original documents was a significant error rooted in the fact she had not realised that some of the documents to which Mr Beaumont was referring and of which he was possession were hard copies. In part she believed that he may have made it up - she believed he had a huge agenda against the Union and said she did not trust him. She accepted that her investigation and all the interviews of the Claimant were based on the fact that she thought the documents were electronic copies and accepted that any charge based on that understanding was clearly undermined.

5.24 The Respondents had over a lengthy period been greatly concerned about the number of leaks being made to in particular www.amicus and it was acknowledged that leaks had continued into December 2005. Clearly the Claimant could not have been responsible for those leaks being then suspended although the Respondents asserted that after the suspension of the Claimant and his colleagues the number of leaks was reduced.

5.25 The investigation was concentrated largely if not exclusively upon the Claimant and this narrow focus upon him and the assumption that the leaked documents had been obtained electronically diverted attention from the wider question which Ms Hirsch later accepted should have been considered namely could access have been gained to the physical documents in Ms Hirsch's possession, and how.

Case Number: 2201475/2006 5.26 Having so accepted Ms Hirsch then volunteered to the Tribunal that she was so forgetful regarding her keys that she had given a set to CathieWillis. The keys to Ms Hirsch's filing cabinets were kept in her desk to which Cathie Willis had access. 5.27 During the course of the hearing Ms Hirsch changed her stance in regard to many matters of substance. She accepted, now she had had it clearly drawn to her attention, that a number of the leaked documents were actually hard copies bearing her handwriting and therefore Robert Gomez could have been the source of the leaks. She acknowledged also that Mr Gomez had had copied to him officially a letter sent to the head of a charity Pat Ryan, being another of those documents leaked. Ms Hirsch told the Tribunal that she- had forgotten at the time that Gomez could or would have had access to the Pat Ryan letter. Because she focused on what she believed was the electronic nature of the leaked documents she had never given any thought to the issue of her keys and the physical security of her office.

5.28 There was no evidence that connected the Claimant with the production of the leaflet at the TUC congress, the leaflet referring to the suspension of three senior officers of the union (including the Claimant).

The disciplinary hearing

5.29 The disciplinary hearing was conducted by assistant general secretary of Amicus the Union, Mr Doug Collins, on 20 February 2006; Mr Collins' decision was issued by letter on 17 March following. The management case consisted of the report prepared by Ms Hirsch and a set of documents compiled by her. Dave Kent a full time officer of the GMB represented the Claimant reading out initially a statement of case asserting that the Claimant had been seriously disadvantaged in his preparation of a full and comprehensive defence by the Respondents' refusal to provide reasons for suspension, and the presentation of charges rather than allegations. The document detailed the Claimant's rebuttal of the Respondents' allegations complaining that in relation to many of the items now presented the Claimant had not been questioned during the investigatory interview. Also present and in support of the disciplining officer was Tony Ayres, head of personnel. The Claimant complained that the Respondents had refused him an opportunity to examine the management witnesses many of whom appeared not even to have been interviewed by the investigating officer but provided only written statements. During the interview he returned to this topic also complaining that the witnesses were not present to be cross-examined them during the hearing. Denying the Claimant had any right to cross-examine Mr Collins confirmed that he could of course call witnesses if he wished. Mr Heemskerk said that this was very difficult for him since one of the terms of his suspension had been that he had no contact with his fellow workers at the offices. The Claimant pointed to the lack of evidence or any material incriminating him and in regard to charge no. 1 - the alleged flagrant failure to follow an instruction from a line manager by communicating with other employees - and Mr Collins indicated that his initial view was that he would likely find there was no supporting evidence. As to charge 2 the Claimant objected that the material now being advanced in support was exactly that material which during the grievance procedure, the deputy general secretary had declared that the Respondents would not use as evidence at the disciplinary hearing. During the hearing Mr Collins in regard to Gomez asserted that he (Gomez) could not have had access to certain documents because they were not shown or copied to him and were locked in Ms Hirsch's room.

5.30 On 17 March 2006 Mr Collins issued the letter confirming the result of the disciplinary hearing. Having summarised the charges that Mr Heemskerk faced Mr Collins canvassed briefly a number of issues. He acknowledged that the Claimant

Case Number: 2201475/2006 had complained regarding the scope and nature of the investigatory process and its apparent partiality, the issue of witnesses and the difficulties the Claimant had faced in providing detailed responses because of access restrictions to e-mails and computers, imposed by the Respondents. He drew attention to the ACAS Code of Practice on disciplinary and grievance procedures and his understanding that the Claimant had no absolute right to cross-examine witnesses during a disciplinary hearing. He emphasised that the Claimant had always been at liberty to call any witnesses he wished and asserted that he had given careful consideration to all the matters raised by or on behalf of the Claimant. He had concluded that the quality and scope of the investigatory process was both proportionate and reasonable in all the circumstances and was sufficiently comprehensive in nature to ensure that all of the issues were fully investigated before any conclusions were arrived at and that the Claimant had every opportunity to respond in detail to the matters raised and raise any other points.

5.31 In regard to the individual charges as to the first - flagrant failure to follow an instruction from a line manager or other senior officer or staff member - he concluded that in all the circumstances it was unrealistic to find anything other than that the Claimant had colluded in the planning, preparation and circulation of the leaflet regarding the suspension of Cathie Willis, Jimmy Warne and himself. He considered it also reasonable to conclude from both letters submitted by Mr Heemskerk and during the course of the investigatory and disciplinary hearings that the collection of words, terms and expressions used by all three of the suspended people in explaining their respective positions a similarity and consistency that it would be impossible not to have a reasonable belief that they had discussed their proposed responses with each other beforehand contrary to the instruction given to them at the time of their suspension. As to the remaining matters he considered it appropriate to deal with them all as one - they all were about the issue of trust and confidence.

5.32 Mr Collins then stated that he had been influenced by "the undeniably and highly suspicious way in which you [Claimant] sought to conceal activities undertaken on your computer during the course of your work". Also influencing him was the fact that the Claimant's possession of a document, "Employees left under VR" (a Spartan list of 15 or so individuals who had taken voluntary early retirement), to possession of or the creation of which the Claimant had no need or right or authority had been inadequately explained. On the basis of Ms Hirsch's report he found that the Claimant had been the source of the confidential documents disclosed to David Beaumont - and indicated that that directly went to the central question of whether or not there had been a breach of trust and confidence. It also reflected, he said, upon the Claimant's motivation. Further the breach of trust and confidence so found was compounded by the fact that the examination of the Claimant's computer drives had shown he had intimate links to "recommended privacy software" - which he described as concealment and deletion of software. He accepted that the finding of that link did not point directly to the fact that such software had been installed on his PC at some stage but reflected on Mr Heemskerk's credibility.

5.33 Mr Collins added that the existence of that link led to what he termed a reasonable conclusion that such software could have been used to remove all traces of the Claimant having copied the files from the drives of the senior legal adviser and General Secretary and of e-mailing them, whether directly or through an intermediary, to Beaumont. (The Tribunal observes that this conclusion and others stemming from the flawed investigation must fall, given that Ms Hirsch herself now accepts t in relation to those documents this could not have been the route by which the documents arrived with David Beaumont - they were hard copies, not electronic.

Case Number: 2201475/2006 The deficient investigation poisoned the disciplinary and appeal hearings). Mr Collins found that the frequency of telephone calls between Mr Warne, Ms Willis and the Claimant must have been, at least in part, in fulfilment of a particular purpose and agenda, not being explained by operational demands, contact rooted in dubious reasons geared to working against the best interests of the Union. Having reviewed the matters as summarised above, Mr Collins found that the Claimant was guilty of gross misconduct as a result of a fundamental breach of trust and confidence and that the appropriate penalty was summary dismissal. He advised of the right of appeal.

Appeal

5.34 By a letter dated 24 March 2006 to Mr Dubbins Mr Heemskerk appealed against the findings at the disciplinary hearing on 20 February. He requested that Amicus agree to ACAS or an alternative independent body hearing the disciplinary appeal because he considered that Mr Dubbins was prejudiced, given that he had been present during what the Claimant termed the prejudicial statements made by the General Secretary against him at the NEC meeting on 7 September. The Union rejected that request, indicating they believed that Mr Dubbins was not biased.

Tony Ayres, Head of Personnel, wrote to the Claimant on 31 March 2006 in regard to the termination of his employment and confirming receipt of his notice of appeal. He later wrote supporting the decision to appoint Tony Dubbins to hear the appeal. The appeal hearing was fixed to take place on 3 May and full grounds of appeal invited. On 25 April Mr Heemskerk submitted his grounds of appeal. They were set out in: 5.34.1 His original statement of case answered all the original charges.

5.34.2 An addition to the statement of case which accompanied.

5.35 Put briefly, Mr Heemskerk's original response to the charges laid against him were:- As to charge 1 - flagrant failure to following an instruction - there was no supporting evidence - merely a leap of faith. As to charge 2 - fundamental breach of trust and confidence - evidence that the Union's Deputy General Secretary in grievance proceedings had indicated this material would not be used to base a charge against him but it had flagrantly so been used. Charge 3 (access to material inadvertently placed on public Intranet - 2003); evidence of Union's own experts that Windows XP Professional operating system overwrites and destroys data quickly. Failure to take up David Beaumont's offer to see original documents. As to telephone call, had been received from David Beaumont when he was at a GMB conference on leave of absence from work. Rejection that brown envelopes had been passed to delegates and no evidence he had been involved; the fact that Robert Gomez's involvement had been virtually ignored; the fact that no evidence had been found on Mr Heemskerk's computer or otherwise linking him with the distribution of documents was made. The challenge to the fact that no search of the entire network had been made and, further, that there was no evidence linking the Claimant to the three documents found. As to charge 3 - fundamental and serious breach of trust - the material was challenged on the basis that it was opinion and not evidence. A similar defence was made regarding the alleged serious breach of contract by seeking to discredit the General Secretary. As to the allegation that the Claimant had caused a serious breach of trust by attempting to conceal activities, there was no evidence at all that he had saved numerous items to external drives and nowhere in the forensic report was there any evidence to say that he had. He went on to state that the software link, to which his employers apparently took exception, had been installed by the Union's own consultants at stationed at the Respondents' office at Northgate called in to deal with an infection of his computer with a virus infection. It was they, he said, who had loaded software in an attempt to remove the virus. He advised that that could be verified by Northgate and would be evidenced bye-mail traffic (which he asserted had been withheld by Amicus). He

Case Number: 2201475/2006 complained that there had been no investigation of this matter. He further went on to complain that the allegation regarding the VR leavers list, a document regarding pay sources and the Roger Lyon contract were not matters on which he had been subjected to an interview (correct) and that their existence had been reported to Jennifer Williams, the General Secretary's personal assistant, as soon as they were discovered during 2004. He had been denied access to his e-mails and so he had been unable to present a complete response to the case. Mr Heemskerk gave other explanations which he asserted demonstrated that the Respondent's case was wrong, and complained there had been insufficient investigation and that he did not object to there being a more extensive investigation.

5.36 In his statement of addition to the case, Mr Heemskerk complained that he

had not, as Mr Collins had indicated, accepted the explanation surrounding the interviews with Cath Spate. He had requested to hear the original tape - that request had been refused. He felt that without the opportunity for them to test the material, the evidence should be withdrawn. He challenged the investigation, the completeness and sufficiency of the investigation, as he asserted there had been no investigation of any of the evidence given to the investigatory team. None of the points regarding the investigation raised in Appendix I of his statement of case had been investigated. He reiterated that he had not been allowed to question witnesses; that the reference by Mr Collins to a similar form of words in "letters", "correction of words, terms and expressions" had not been identified - he wished to know what they were. He complained that a charge that had been dismissed as a result of the grievance procedure had been resurrected for the purpose of the disciplinary hearing, and wrongly so. He drew attention to the fact that whilst on the one hand Mr Collins had said that the VR leavers document had at no point been adequately explained - later he went on to deal with the explanation given in the statement of case and he asserted that the statement of case was an adequate answer to the charge. He complained that the charge of inconsistency with working methods across the Union failed to identify what those working methods were supposed to be. The reference to the telephone call to David Beaumont being "for wilful purposes" had been added as a new charge which had not been levelled prior to the disciplinary hearing and which he said should therefore be ignored.

5.37 The Appeal Hearing

The appeal hearing took place on 18 May. Present were the Claimant; Mr Kent representing him; Tony Ayres, Head of Human Resources, (with Elaine Fowl taking notes). The appeal itself was conducted by Mr Tony Dubbins and took place by way of review - no new evidence was called. In summarising the case, Mr Kent said on behalf of the Claimant that he had a number of concerns about the reasons for dismissal as set out in Doug Collins' letter of dismissal and that the main basis of the appeal was that the allegations had not been prove and that although Mr Collins' letter was some seven pages long, it was not comprehensive in terms of the reasons for dismissal. He asserted that the allegations had been barely investigated and that none of the points raised in the appendix to the original statement had ever been investigated or dealt with, as he made clear at the hearing. Having canvassed all the issues (as earlier outlined by the Tribunal in this decision), Mr Kent said that on the assumption that the original statement of case had been read and understood and the additional points thoroughly understood, he would urge Mr Dubbins to countermand Mr Collins' decision as being unfair, unreasonable and unjustified and that Mr Heemskerk should be invited to return to work. The hearing concluded after 40 minutes, with Mr Dubbins indicating that he would consider the matter and advise the outcome. On 8 June Mr Dubbins notified his decision, rehearsing the details of the appeal.

Case Number: 2201475/2006 5.38 As to the main points that were the subject of the appeal, Mr Dubbins observed as follows. Regarding the assertion that the investigation had been inadequate, in the light of Mr Collins' letter of 17 March 2006 and in particular the full paragraph contained on pages 2 and 3, Mr Dubbins concurred with the views there expressed. He also concurred with Mr Collins' statement as to the law that there was no rule or right allowing employees to cross-examine witnesses and that he had a full opportunity to call any witnesses he wished. Similarly, he concurred with Mr Collins' conclusions as to the Claimant's involvement in the planning, preparation and circulation of the leaflet regarding the suspension of Mr Heemskerk, Ms Willis and James Warne.

5.39 Regarding the assertion that the Respondent had relied upon material which had been ruled out as a result of the filing by Mr Heemskerk of a grievance, Mr Dubbins found that the alleged access to computers (which could have been but was not the subject of a disciplinary allegation) was not made the subject of charges by the Respondent but that the Respondents had utilised the "product of that unauthorised accessing". He believed that Mr Collins had adhered to the outcome of the grievance procedures and the finding in Mr Heemskerk's favour. In the light of what Mr Collins had found, contrasted with the explanations that had at the time been given by Mr Heemskerk, Mr Dubbins was satisfied that Mr Heemskerk had wilfully and purposely accessed the highly sensitive and confidential document entitled "Employees left under VR", when he was not authorised to do and had no legitimate or organisational operational reasons for copying and retaining the information.

5.40 Regarding the Claimant's demand to be advised of the working methods which he was alleged to have ignored or broken, Mr Dubbins assumed, since that specific matter had been raised, that the Claimant accepted the rest of Mr Collins' conclusions. This patently was not the case. Mr Dubbins supported Mr Collins' conclusions regarding the 1 O-minute telephone call with David Beaumont and believed that it was right for Mr Collins to have entertained an allegation regarding that telephone call, since written notice of the intention to raise it had been given in advance of the disciplinary hearing by the Respondent. He also noted that there seemed to have been no appeal against the assertion of regular telephone contact between the Claimant, Mr Warne and Ms Willis.

5.41 Having touched on those matters, Mr Dubbins rejected the appeal, so notifying Mr Heemskerk in that letter. In evidence to the Tribunal Mr Dubbins said that in dealing with the appeal he had confined himself to a consideration of the grounds set out in the addendum to the notice of appeal. He had not considered the issues as set out in the Claimant's main statement of case - the response to the employers' statement of case - this notwithstanding that both in the written appeal and a t the hearing he had been asked to consider the latter.

Submissions

6 The Claimant urged the Tribunal to follow West Midlands Co-operative

Society Limited v Titpton [1986] IRLR 112 in as much as he was contending that the way in which the Respondent had handled the appeal was itself unfair in that the Respondent acted unreasonably in confirming the dismissal not having engaged with the Claimant's grounds of appeal and therefore denying the Claimant the opportunity which the appeal should have afforded to him of having mitigatory or exculpate factors weighed, factors which a reasonable employer would have treated as sufficient to explain or excuse the Complainant's alleged misconduct.

7 The Claimant also relied upon British Home Stores Lld v Burchell [1980] ICR 303 EAT which indicates that for a "conduct" dismissal to be fair three criteria

Case Number: 2201475/2006 should be fulfilled namely that the employer should establish that they had an honest belief in the employee's misconduct; that the belief was based on reasonable grounds; and that those grounds were based on such an investigation into the matter as was reasonable in all the circumstances of the case. The Claimant further contended the Tribunal should not likely find that the Respondent had carried out a sufficient enquiry into the Claimant's alleged conduct - the allegations were serious, perhaps amounted to an allegation of crime and it was therefore incumbent upon the Tribunal when assessing the reasonableness of the investigation, to examine whether the employer had carried a careful and conscientious investigation focusing no less upon any potential evidence that mi§Jht have exculpated the Claimant or pointed towards his innocence, as on evidence establishing guilt. It was said in Tipton that this duty on employers was magnified where an employee had been suspended and consequently was denied the opportunity of contacting potentially relevant witnesses (exactly the position in this case). Where reputation, job and the chance of securing future jobs was at stake, anything less than an even handed approach to the investigation would not be reasonable. Tipton also indicates that where the investigation is inadequate an employer cannot say that if the investigation had been fair then the dismissal would still have occurred - that goes to compensation - and see Polkey v A E Day ton Services Ltd.

8 The Respondent contended that Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23 was pertinent in considering Tipton in that the Court of Appeal stressed the need for Tribunals to avoid substituting their own view of what was a reasonable investigation rather than applying the objective standards of the reasonable employer - the reasonable responses test. The purpose of the investigation is to establish not the guilt of the employee but whether the employer had reasonable grounds for the decision to dismiss and whether that decision to dismiss was reasonable.

9 In Perkin v St George's Healthcare Trust [2005] IRLR 934 a breakdown in

confidence between an employer and a senior executive for which the latter was responsible and which potentially or actually damaged the operation of the employer's organisation, or which rendered it impossible for the senior employees to work together as a team, was held capable of amounting to some other reason for dismissal. In such circumstances the Burchell test should be applied - there was no reason to restrict the principles enunciated in that case to 'conduct' cases. It was also held that the Tribunal had not erred in finding that the process had been procedurally unfair in that the person chairing the disciplinary hearing wanted to get rid of the employee but nevertheless there was a 100% chance that had the chair been wholly independent the employee would have been dismissed.

The Law

10 Section 95 of the Employment Rights Act 1996 gives all employees who

qualify a right not to be unfairly dismissed. Such a reason should be one which the Act recognises as a potentially fair reason for dismissal. Section 98(4) of the Act requires that the Tribunal must judge whether or not the employer's decision was fair in all the circumstances and applying equity and fairness to that decision. The Tribunal must not in arriving at its decision substitute itself for the employer. Whilst it must look thoroughly at the facts it must not substitute what it might have done in the circumstances confronting the employer for what the employer did, provided of course that what the employer did falls within the band of actions that a reasonable employer in the same circumstances would have considered appropriate; that such an employer might have adopted. That principal was enunciated in Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 EAT and Post Office v Foley.

11 Before dismissing an employee on the grounds of conduct an employer should

have an honest belief in the individual's misconduct based on reasonable grounds

Case Number: 2201475/2006 following a reasonable investigation of the circumstances - British Home Stores v Burchell - see above. In terms of the procedure followed by an employer generally it is essential if an investigation is to be fair that an employee is given full details of the allegation against him and an opportunity to answer it. The employer should avoid seeming bias in those undertaking the investigation. It is often preferable for the employer to avoid any hint of bias by separating the investigator from the

decision maker. But what matters is whether or not the employee's case is properly received and adjudicated upon.

Conclusions

12 It is Tribunal's finding that the Respondent's dismissal of the Claimant was fatally flawed given that the investigation of the complaints against Mr Heemskerk was significantly deficient. Thereafter the procedures utilised by the Respondents failed when the opportunity arose to correct or cure that initial failure. The Tribunal is alert to the need to avoid substituting its own views for those of the employer but we are satisfied that the decision made by the dismissing officer was based upon a seriously flawed investigation, an investigation with which no reasonable employer would have been content. Although the opportunity to revisit the investigation was available to Mr Collins he did not take it. The flawed investigation thus fatally tainted the dismissing process and Mr Coli ins' decision to dismiss. So also was the appeal itself tainted. It did not take place by way of full re-hearing, the appeal officer as he said in evidence, confined himself to a review of the matter, a review limited in scope only to the supplementary grounds accompanying the appeal and not those advanced by the Claimant and his representative. The appeal proceeded on the basis that Ms Hirsch's investigation was adequate when a properly critical review would have demonstrated it to be anything but. The substantial and honest concerns expressed by the Claimant in his statement of case to his employer and intended by him to be considered at the appeal were not given adequate, and in some cases, any consideration.

13 To expand - the generation of the Claimant's dismissal was found in the leak

of documents to the website www.amicus.cc. operated by Mr David Beaumont. The appearance of those documents on the website was understandably resented by Mr Simpson the Respondent's general secretary. He considered he knew who was responsible and albeit not naming the individuals made it very clear in a public address to the NEC and shortly afterwards to his union's finance and general purposes committee that he knew who the individuals were. He stopped short of naming them and stepped out of the investigation so as not to run the risk of unconscious or actual bias and passed the matter to Ms Hirsch who was privy to the general secretary's knowledge and belief. Unfortunately Ms Hirsch harboured feelings of strong resentment against Mr Heemskerk ever since he had happened upon confidential documents, some of which were on her files, on the publicly accessible part of the union's internet and by his own admission - whilst alerting the general secretary to the lapse in security - had read them and indeed made comments generated by their content. Ms Hirsch had ever since that incident believed that Mr Heemskerk should have been disciplined.

14 So perhaps Ms Hirsch was not the ideal person to put in charge of the

investigation. But it was not impossible for her to have carried out a fair investigation provided she suppressed her resentment of and antipathy towards the Claimant. Sadly she was unable to do so. Bias against Mr Heemskerk was evident throughout