Dismissal for Sending Offensive Email from Home PC Was Fair
Employment lawyer Joanne Stronach explains why good employment policies are essential in the light of a recent Employment Tribunal case....
A recent case (Gosden v Lifeline Project Ltd.) demonstrates that it is important for employers to have in place an Internet usage policy and to ensure employees are aware that disciplinary action may be taken over any conduct capable of harming the employer’s reputation.
Mr Gosden was employed by Lifeline Project Ltd., a charity that provides help to drug users and their families and works closely with HM Prison Service (HMPS). Whilst working for HMPS on assignment, he forwarded a ‘chain’ email from his home computer to the private email address of a colleague, Mr Yates, who was employed by HMPS. The email, which was headed ‘It is your duty to pass this on!’, contained racist remarks and was accompanied by images of naked women. Mr Yates then forwarded the email to another HMPS employee. As he used the man’s work email address, at this point the email entered the HMPS email system.
The prison management became aware of the offensive email and a formal investigation took place. Mr Gosden argued that he should not be held responsible as he had sent the email out of working hours to Mr Yates’s private email address and it was Mr Yates who had caused it to enter HMPS’s computer system. However, the investigating officer found that Mr Gosden’s action had been inappropriate and contravened HMPS’s equal opportunities and Internet usage policies. Mr Gosden was duly suspended from working for HMPS. Mr Yates offered to resign over the matter but it was agreed that he would take early retirement.
Lifeline subsequently carried out its own investigation into the incident and a disciplinary meeting took place. The company was of the view that Mr Gosden’s action had made it impossible for him to work for HMPS and sending the offensive chain email to an employee of HMPS was in breach of its own policies and procedures and constituted gross misconduct which had caused damage to the charity’s reputation. He was therefore dismissed.
Mr Gosden claimed both unfair dismissal and wrongful dismissal. He argued that he was not directly responsible for the promulgation of the email and that Lifeline’s decision to dismiss him had been influenced by the recommendation of the HMPS investigating officer.
The Employment Tribunal (ET) dismissed Mr Gosden’s claims, however. In the ET’s view, the reason for his dismissal was misconduct. The fact that the offensive email stated in a prominent position that it should be passed on meant that he could not have expected it to remain private. The ET found that Lifeline’s decision was within the band of reasonable responses open to an employer when faced with misconduct resulting in damage to its reputation.
Employment law Partner Joanne Stronach "Whilst employees may argue that any communications sent in their own time are nothing to do with their employer, where these have the potential to reach a wider audience and thereby harm the employer’s reputation, disciplinary action is likely to result.”
About the author
Joanne Stronach is joint Head of Burnetts' Employment Law & HR team.
Published: Monday 26th September 2011