Veitch Penny LLP - Exeter | Crediton, Devon

Case

Helan Brearley v Timber Tailors
Employment Tribunal - (31 January 2005)

Issues

(1) Unfair dismissal
(2) Contracts of Employment, Policies and Procedures
(3) Email and Internet usage

Facts

Ms Brearley was employed as a designer by the Respondent, a shopfitting company.

The Respondent began monitoring her emails and her use of the internet daily, and found that over a 15 week period she sent 300 personal emails to her partner. Brearley was suspended in November 2003 before being dismissed for gross misconduct.

Brearley then commenced proceedings for unfair dismissal, arguing that she was dismissed because the Respondent was about to lay off 38 of its 110 staff and could not afford her redundancy payment. She also submitted that her emails were private to her and did no harm to the Respondent.

The Tribunal was told by the Respondents that Brearley’s standard of work had declined since the emails started. The Respondent was of the view that the volume was excessive, and that some of the content was offensive.

The Employment Tribunal found that she should not have been dismissed, and her employers were ordered to pay her £26,245 in compensation. The Tribunal chairman noted that Brearley had been given “no prior warning that her behaviour warranted criticism, and undoubtedly if she had she would have stopped”.

Decision

The Employment Tribunal found that she should not have been dismissed, and her employers were ordered to pay her £26,245 in compensation. The Tribunal chairman noted that Brearley had been given “no prior warning that her behaviour warranted criticism, and undoubtedly if she had she would have stopped”.

Comments

The Respondent has indicated that it will appeal the decision, but this case serves as an excellent reminder of the importance of implementing proper policies and procedures when dealing with issues of employee discipline.

Furthermore, employers must be cautious when dealing with email abuse as the monitoring of employee emails is subject to much legislation, including the Data Protection Act 1998, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000, the Regulation of Investigatory Powers Act 2000, the Human Rights Act 1998 and the Employment Rights Act 1996.

The issues this case and the legislation raises can be addressed by the appropriate use of policies and procedures. This gives employees clear guidance on what is and is not acceptable from the outset of the employment relationship. It can also help ensure that employers are not unlawfully monitoring emails or acting in breach of the Data Protection Act.