Bowdlerised "Proof of Evidence" Text.

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I, Tod Potsgrove of Bloggsville, declare that the contents of this Proof of Evidence are true to the best of my knowledge and belief and that I will say as follows:

1. I am the Human Resources Director of Bloggs Chemicals and I also manage Bloggs Chemicals' sites at Bloggsville and Chemtown. I am ultimately responsible for personnel and human resources issues for the whole of Bloggs Chemicals and whilst I do not tend to become involved in the day to day disciplining, hiring and firing of staff, I frequently hear appeals against decisions of David Cuxham as Personnel Manager and other line managers, some of whom report directly to me.

2. I had not met Mr Dale prior to our meeting on 26th January 1994, although Mr Cuxham had told me some of the background to the case, I had also read the notes of the disciplinary hearings and meeting at which Mr Dale was dismissed and had discussed the IT problems with Col Ledston and Roland Halam.

3. At the appeal hearing on 26th January 1994 Rachel Roden made an approach before the appeal hearing started in which she said that she wanted to make an offer and that the trade union did not want to go ahead with the appeal. She said Mr Dale wanted to resign with effect prior to his dismissal. She asked how I felt about it. I explained that one of Bloggs' main concerns was to fully investigate the files which Mr Dale had opened, which could potentially damage Bloggs' IT system or expose us to liabilities for licence and copyright infringements. We could only fully complete these investigations with Mr Dale's cooperation in giving us the passwords required to enter the various files he had created. This had been indicated to Mr Dale at the reconvened disciplinary meeting on 6th January 1994. Mr Cuxham had sent to the Applicant a list of file marked with those for which we required the passwords.

4. In the light of our need for Mr Dale's cooperation, I was prepared to make a deal with him in relation to his departure from Bloggs and I indicated this to Rachel Roden. I said that I would only be prepared to accept a resignation if Mr Dale delivered up all the passwords which we required and that on receipt of those passwords we would have 72 hours to investigate each of the files. If we were able to complete our investigations fully we would then accept his resignation. In the circumstances I was not prepared to make any payment whatsoever to Mr Dale, because I believed his conduct did not merit any such payment. Rachel Roden had requested on his behalf that it would be part of the deal. Although Mr Cuxham had sent him a list of files on 12th January, Mr Dale claimed he had not received it. However, he was given a fresh copy at this meeting and he wrote the passwords on the new copy during the meeting. We retained a copy and gave one to Rachel Roden to take away.

5. Rachel Roden said that Mr Dale would take the deal that I had offered and the meeting closed in order for Col Ledston and Roland Halam to coordinate the investigation of the password protected files. However, we did not have all the passwords for the protected files and it took longer than the anticipated 72 hours to establish that we could not gain access to seven files. Col Ledston reported this to me, with some other information relating to Mr Dale's activities. Jon Bachelor was also thoroughly investigated by the IT department but no further action was taken.

6. Since we still required some further information from Mr Dale I asked David Cuxham to contact him and ask him to come in. I should say that the period following Mr Dale's dismissal when the company was considering accepting a backdated resignation in return for cooperation with our investigation was not as fully documented as the formal disciplinary procedures which were gone through. The simple explanation for this is that neither the union nor the company felt comfortable with, or wished it to be widely known that formal procedures could be altered in order to reach an agreement as to individual's departures. However, when the negotiations broke down, we proceeded in the usual formal way.

7. Whilst I wanted Mr Dale to come in and see me to explain the missing passwords, he had taken offence at Mr Cuxham's call on 9th February to set up an appointment to see me. When I wrote to him on 16th February 1994, I was unaware that there had been a problem with his conversation with Mr Cuxham, I found it extremely difficult to contact Mr Dale and I was very concerned to bring the matter to a close. As time was a premium, and in view of the fact that the IT department wished to complete their investigations as soon as possible, I asked our senior security inspector to hand deliver a letter of 17th February to Mr Dale at home I thought this would avoid any further confusion and would ensure that he received my letter, as he had previously claimed not to have received correspondence from Mr Cuxham.

8. On receipt of my letter, Mr Dale telephoned me and complained that the delivery by the security inspector was oppressive and intimidating. I told him that it was imperative that we meet and he indicated when he would be available. I sent a letter confirming our conversation recorded delivery in order not to upset Mr Dale further.

9. He did attend my office on 25th February and Mr Cuxham was in attendance, although it was a very short meeting. My recollection is not very good, but I know that at that meeting we discussed the outstanding passwords. We jotted these down on the list of remaining password protected files. I recall that the meeting was not particularly pleasant and I said that we would get back to Mr Dale fairly quickly and once we had investigated the remaining files. Whilst the meeting started at 3 o'clock, I must have left the building by around 4.15pm or 4.30pm, because I know from my diary I was elsewhere at 5.30pm. I had shifted other appointments during the day in order to meet with Mr Dale and I regarded obtaining the final passwords as a priority. Although I am not an IT person, I have overall responsibility for the safety and security of the Bloggsville site and for liaising with the Government Registration and Security Authorities. The site has the potential to be highly dangerous and any risk which threatens the security, including computer abuse, is top on my list of priorities. My health and safety maxim, which is well known on the site, is that I will walk past nothing. I m in the position of knowing what damage could be done if security at Bloggsville were breached.

10. Having passed the passwords given by Mr Dale on to Col Ledston, he told me on the 8th March that as far as he was concerned we did not need to obtain further information from Mr Dale because there were three remaining files unopened, for which Mr Dale could not remember the password. They were old files which had not been worked since 1988. Accordingly, I wrote to Mr Dale on a without prejudice basis because I hoped his resignation would then bring the matter to an end to the benefit of both parties. However, a deal was not forthcoming.

11. Unfortunately Mr Dale did not want to go ahead with that agreement and Rachel Roden wrote to me to let me know. Mr Dale also wrote to me on 16th March 1994. Contrary to his letter I did not lead him to believe that the meeting on 25th February was to be an appeal and contrary to his suggestion, I was not seeking in any way to delay the formal process relating to his dismissal. On the contrary, I had tried persistently to meet with him in order to resolve the situation one way or another. During the meeting on 25th February I did not "refuse" to clarify whether or not I would allow an appeal against dismissal. Mr Dale's right of appeal was unaffected by the negotiations to his appeal. I recall that Mr Dale may have said something like "What about my appeal", to which I had replied that I was interested at that time in securing all the necessary passwords and determining if I could then accept his resignation, in which case an appeal would be unnecessary. I did have difficulty reading Mr Dale's writing, which is why we arranged for his letter of 16th March to be typed up. I did not receive it until 18th March and I had already written to him asking for a response to my letter of 9th March. One of the consistent features of my dealings with Mr Dale was that the process was consistently delayed by him for various reasons, which I could not understand as to my knowledge he was without employment. I did not understand why he was so reluctant to see me.

12. However, on receipt of his letter we proceeded to organise an appeal. Despite suggesting the soonest available dates of 6th and 7th April 1994, the hearing was not held until 18th April 1994 because Mr Dale was not available on the earlier suggested dates. At the appeal hearing itself, I felt it would be necessary to make sure that the parties understood how it would be conducted, because my experience of Mr Dale so far had been that he became side tracked from the key issues and that the whole situation could become rapidly out of control. Mr Dale was represented by Miss Roden and her points are set out in the notes of the appeal. I always draw the individuals attention to the reasons for their dismissal in the dismissal letter and tell them it is for them to put forward reasons why the decision is unfair. I usually read out the dismissal letter and I am pretty sure that I did in this case.

13. I had listened to Miss Roden's points on behalf of Mr Dale and I wanted to reply fully during the meeting. The notes reflect what I said at the time. By way of explanation, Mr Dale was not given the full text of the Incomp report nor was he given internal memos recording the estimate of time he had spent doing unauthorised computer work, but he had been provided with specific documents which were not felt to be sensitive by Mr Cuxham, for example, the listing of files on which he had worked and his personal appraisals. The Incomp report and internal document relating to the IT investigation were confidential and could have been the basis of criminal proceedings against Mr Dale for fraud based on computer abuse and we therefore did not feel able to disclose them at the time. However, Mr Cuxham made notes of the main allegations supported by the evidence against Mr Dale and put these to him clearly. In examining whether of not the dismissal had been fair, I was concerned to ensure that he had been given sufficient information so that he knew what the allegations were against him in order that he could give proper answers to them. I had no doubts from the notes of the disciplinary hearing and from the listing of files in which unauthorised work had been carried out that Mr Dale knew of the allegations that were being made against him, although he had not necessarily received the document which gave rise to those allegations.

14. Although I was looking at the fairness of the dismissal, I also looked into the merits of the evidence to some extent and Miss Roden raised the fact that she thought there was considerable doubt as to whether Mr Dale had actually committed the acts for which he had been dismissed. On the balance of the evidence I agreed with Mr Cuxham that it was more likely than less likely that Mr Dale had engaged in significant amounts of unauthorised work on the computers and telephones, in some circumstances for profit.

I was also satisfied that a thorough investigation had been carried out by Mr Cuxham. As regards permission being given for Mr Dale to engage in the activity, Deryck Ledston had contacted Mr Gretton who was named as the manager giving such permission He had also asked Deryck Ledston. As Gerald Gretton no longer works for Bloggs, he had no reason to lie in respect of this matter. As regards the work being carried out in lunch times and half day holidays, Mr Cuxham had established from Deryck Ledston that the book in which holidays are entered by his staff did not disclose any half day holidays for Mr Dale during the previous year. Deryck Ledston had conceded that the department operated a self policing system and that if somebody took a half day holiday, it may not have been recorded. However, in those circumstances, the individual would have been paid for that half day. Mr Dale's manager, Mark Tranwell, indicated that he had informally spoken to Mr Dale as regards his work and use of computers. In addition, Deryck Ledston had also spoken to him about his work rate on several occasions.

15. My other points in relation to the points raised are set out in the notes, but one of the new matters which Mr Dale raised, which could have affected his dismissal was the emergence of people who were prepared to say that Deryck Ledston ad given him permission to use the computer to the extent he had in his own time. Despite reassurances that these people would be treated confidentially if they came forward, Mr Dale would not give us their names. I therefore simply had to weigh up the word of Mr Dale against the word of Mr Ledston.

16. In the absence of any further material factors which could affect the fairness of the dismissal, I closed the meeting to consider what Miss Roden had said. I gave my reasons for upholding the dismissal on 28th April 1994 and at the end of the appeal Miss Roden's main concern appeared to be that she had not had sufficient information on which to conduct Mr Dale's appeal. However, I was satisfied that there was no element of unfairness in Mr Cuxham's decision. The nature of the misconduct made it very difficult for non IT staff to fully evaluate all the information and deal with it in a constructive manner. I felt that Mr Dale had not been prejudiced by Mr Cuxham's summary of the matters contained in the Incomp report and there was no denial that he had done all of the work listed. There was also no denial that he had developed a programme to capture other people's passwords, which in my view was gross misconduct in itself. As far as Mr Dale's claim that he had permission to carry out the work he did, I said during the appeal that those claims had been fully investigated and in any case, it is like someone who is allowed on occasions to leave early at say 3.00pm. It would not then be acceptable for them to leave at say 11.00am. This case appeared to be a similar abuse, if any kind of permission had been given. I would not have overturned a dismissal for theft if it could be shown that an individual's boss had instructed him to commit the theft. Mr Dale is a very sophisticated and competent computer programmer who had attended a pilot course on computer security and computer abuse and knew very well that the level of his activities amounted to serious misconduct. I also believed that his supervisors had no idea of the level of work that he had carried out. I therefore did not feel that he had been prejudiced by the non-disclosure of relevant documentary evidence. I had also needed to balance the security of the business by keeping the expert's report and internal staff memos confidential. Furthermore, when Mr Dale was presented with information he would become a computer snob and would attempt to confuse people like me who are not IT sophisticated to any degree. In this way I hoped to be able to keep our discussions on point.

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