An employment tribunal has found that an employee was unfairly dismissed for circulating to colleagues a document about proposed changes to his company’s pension scheme, which he found on a shared drive.

Mr MacKie worked for AWE plc, which is responsible for the design and manufacture of the UK’s nuclear deterrent. He had been in employment with the company and its Ministry of Defence predecessor since 1978.

A colleague invited Mr MacKie to look at an unprotected PowerPoint presentation on the company’s general “G” drive, which is provided for all employees to store and share information. The presentation was about proposed changes to his company’s pension scheme, with one of the options being the closure of its final-salary pension scheme.

Mr MacKie emailed a copy of the presentation to his union representative and another colleague, both of whom were employees with an interest in the pension scheme. He did a search on the general “G” drive for pension information. He discovered a further unprotected draft pension consultation document. The document was marked “unclassified (sensitive)”, but was not encrypted or password protected.

Mr MacKie sent a link to the document to three colleagues and gave a hard copy to two further employees. All had an interest in the proposed changes to the pension scheme.

AWE suspended Mr MacKie for his actions and an investigation was undertaken. It emerged that the availability of the documents to all staff was the result of system faults and human error.

There should not have been open access to the files.

The claimant’s belief was that anything in the general “G” drive was shared information that he was permitted to access. He argued that:

  • if he should not have had access to the information, steps should have been taken to prevent his being able to access the files;
  • the “unclassified (sensitive)” mark on the document meant nothing to him and, if it had been marked “management in confidence” (a recognised classification for company information), he would have reported it to the cyber-security team; and
  • he saw nothing wrong in accessing and distributing an unprotected document to like-minded individuals.

The matter proceeded to a disciplinary hearing. At the hearing, Mr MacKie’s defence was that he had the right to look in the shared drive and would commonly do searches for technical, and sometimes company information, on the drive. The claimant drew an analogy between his actions and “visiting a library where you can go and get anything with no restrictions”.

The disciplinary panel preferred the analogy of “going into an office and looking in all the drawers of a filing cabinet until the claimant came across something of interest and then copying that and sending it on to friends”. The panel was concerned that Mr MacKie had not raised the fact that he could access the documents. The panel also took into account a lack of contrition and felt that the claimant was wrong not to acknowledge that what he had done was inappropriate.

Mr MacKie was dismissed and his appeal against dismissal was rejected. He claimed unfair dismissal in the employment tribunal.

The key issue for the employment tribunal was whether or not the employer’s decision to dismiss was within the “range of reasonable responses”. In upholding the claimant’s unfair dismissal claim, the tribunal stressed that this was not a case about classified information being shared. Very little information of any real sensitivity was passed on, and no harm was caused.

The employment tribunal rejected the company’s argument that, because of the nature of its work (responsibility for the UK’s nuclear deterrent), the employee should have followed its “need to know” culture. It was accepted that the company does have such a culture, but that is in the context of the UK’s nuclear defence, and not documents about employees’ pension entitlements. The tribunal noted that the documents were incorrectly classified by the company in the first place.

The employment tribunal was particularly concerned at the lack of consideration of other possible sanctions short of dismissal, such as a warning. Mr MacKie’s long and unblemished record required some consideration. The tribunal described his dismissal as a “monstrous overreaction”.

The tribunal also found flaws in the employer’s reliance on the claimant’s lack of contrition and failure to apologise for his actions. The tribunal felt that, rather than reflecting a lack of integrity, his stance showed that he was simply being consistent in his position. It was noted that after the employer’s case had been put to him in the tribunal and with “the benefit of hindsight”, Mr MacKie had accepted that he should not have distributed the two documents. The tribunal saw this as indicating a willingness to acknowledge an error, rather than evidence of a lack of integrity.

The employment tribunal arranged a remedy hearing. It ordered that there should be no reduction in Mr MacKie’s compensation for contributory fault.

Tip –  When considering what sanction to impose under a disciplinary procedure, employers must ensure that their decision is fair and reasonable in all the circumstances.
If the decision does not meet this test, the employer may be exposed to a claim for unfair dismissal if the employee is dismissed or a claim for constructive unfair dismissal if the employee resigns in response to the sanction applied.

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