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Computer evidence in employment matters? | Keith Borer Consultants

May 01 2014

Your experience will tell you that there are some DIY enthusiasts that you would be happy to have undertaking projects in your home.  There are other projects, however, where specialised knowledge and experience really are required.

Similarly where computer evidence plays a significant role in employment disputes, it is common for the evidence to be given by the employer’s internal IT department.  We can appreciate the attractiveness of keeping such investigations in-house but you need to assure yourself that their skills are enough to undertake the task to the appropriate level in case of a challenge by the involved parties.  Can they secure the evidence?  Do they have the experience to undertake a full forensic evaluation of the evidence?  An IT Professional and a Digital Forensic Scientist may seem similar on the surface, but require very different mind-set and skills.

In a recent case, Ross Donnelly of Keith Borer Consultants provided a report for the criminal case of a nurse who was charged with making indecent images of children.  The nurse was acquitted but subsequently, his employer carried out their own investigation and under a different burden of proof he was dismissed.  The Royal College of Nursing acting for the nurse were rightly concerned at the investigation carried out by his employer, which had instructed a member of their IT department to review material and answer questions.  Furthermore the employer chose not to rely upon the computer expert evidence from the criminal proceedings, for reasons of cost.  This expert evidence in fact contradicted the opinions of their IT department.

Ross gave evidence at the panel meeting of the Nursing and Midwifery Council to assess if the nurse should remain on the nursing register or be struck off.  He was able to provide the panel with the information they needed as a result his experience of investigating and preparing reports in many cases of making and possession of indecent images.  His explanations of the complex technical issues in the case allowed the panel to make their decision to overturn the original judgement and reinstate the nurse.

This case underlies the importance of getting the appropriate IT expertise in employment cases.  After all, you wouldn’t ask your local garage mechanic to tune a Formula 1 racing car.

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