Veitch Penny LLP - Exeter | Crediton, Devon

Case

Thomas v London Borough of Hillingdon
Employment Appeal Tribunal (26 September 2002)

Issues

(1) Unfair dismissal
(2) Reason for dismissal
(3) Range of reasonable response test

Facts

Thomas was employed as a senior personnel officer. He accessed pornography on the Internet using his employer’s computer, during office hours. As a result, he was dismissed.

Thomas entered a complaint to the Tribunal on the basis that he had been unfairly dismissed.

The Employment Tribunal found that the employer’s investigation prior to the dismissal had been reasonable. In addition, it found that the employer had a genuine and reasonable belief that Thomas had accessed the Internet on a number of occasions.

The Tribunal rejected the view that a person who viewed pornography would be unsuitable to be a personnel officer, or that such a person would be in breach of the local government rules of probity in conduct.

However, the Tribunal did find that the employee’s behaviour constituted “misconduct” as opposed to “gross misconduct”. In reaching its decision, it noted that the employer’s Disciplinary Procedure characterised the conduct at issue as “misconduct” rather than “gross misconduct”. Accordingly, it found that the decision to dismiss Thomas had been outside the range of reasonable responses appropriate for the conduct. As a result, he was found to have been unfairly dismissed.

The employer appealed the decision. It argued that the Tribunal had been incorrect to substitute its own view for that of the employer, rather than adopting the appropriate legal test. The legal test in question was whether the employer’s response to the incident had been within the band of responses that a reasonable employer might take in the circumstances. As the Tribunal had not used this test, its decision that Thomas had been unfairly dismissed had been incorrect.

Decision

The Employment Appeal Tribunal found that the original Tribunal had been incorrect to consider the fairness of the decision be reference to its own view rather than considering whether the employer’s finding of gross misconduct was within the band of reasonable responses.

The Appeal Tribunal also suggested that if the employee had been a junior member of staff, it was possible the original ruling (that it was unfair to treat such behaviour as a sackable offence) would have been upheld.

Dismissal was an inappropriate sanction for the conduct after the employer had already labelled it as misconduct. The original decision was wrong and would be overturned.

Comments

A recent study has shown that employers are more likely to discipline staff for misuse of email and the Internet than for violence, dishonesty and breaches of health and safety combined. This case highlights that employers can find themselves in a similar situation as the above employer if they do not have adequate email and Internet policies. These policies must clarify to employees what is forbidden, and likewise, an employer must be consistent in its approach to misuse of the Internet and email.