Private and home email use and unfair dismissal

21 April 2011

Gosden –v– Lifeline Project Ltd (ET/2802731/2009)

Summary
Will Clayton’s team acted for Lifeline Project Ltd, who recently achieved a successful outcome in the above case. In a decision which will be welcomed by many employers, the tribunal held that the claimant employee, who sent an offensive email from his home email address to another private email address, had committed an act of gross misconduct which could potentially damage the employer’s reputation and was therefore fairly dismissed.

Background
The claimant was employed by Lifeline, a national charity specialising in drug and alcohol harm reduction work including services within HM Prison Service.

In October 2008, the claimant, in his own time, sent an email from his home computer to the home computer of Mr X, a HMPS employee based at Moorland prison (where the claimant had previously worked). The email contained material of a racist and sexist nature and was headed with the words “It is your duty to pass this on!”. Mr X forwarded the email to a colleague (an HMPS employee) who worked at Moorland prison and, regrettably, the email entered the Prison Service’s computer system. Following an investigation into the matter, the Prison Service excluded the claimant from prisons in the area.

Lifeline’s management set about its own investigation and held a disciplinary process which concluded that the Mr Gosden was guilty of gross misconduct for having carried out an act which could potentially damage the company’s reputation and for breaching its equal opportunities policy. Lifeline dismissed the claimant on 10 April 2009. Following an unsuccessful appeal against the decision, the claimant brought claims in the employment tribunal for unfair and wrongful dismissal.

Judgment
The tribunal dismissed the claimant’s assertions that he had been unfairly dismissed for ulterior motives. Although the claimant’s conduct had taken place outside of work, the tribunal held that no privacy was attached to the email since it was a chain email asking recipients to pass it on. Therefore, the claimant should reasonably have expected it to have been forwarded. The tribunal concluded that a reasonable employer would be entitled to conclude that, by forwarding the email to an employee of one of Lifeline’s biggest clients (even to his private email address), the claimant had committed an act of gross misconduct which could damage the company’s reputation or integrity. Therefore, the tribunal held that the decision to dismiss was within the band of reasonable responses and the dismissal was fair.

Comments
This first instance decision has already attracted significant interest from employment lawyers and HR practitioners. It can assist employers who are concerned about the risks posed to their reputation by employees using email and other online social media. Employers are advised to remind employees to think carefully before sending private emails to work contacts and that doing so could have serious ramifications.

If employers are faced with a similar situation, it is important that they take care to characterise the misconduct correctly. In this case, Lifeline relied upon an example of gross misconduct within its disciplinary policy (of bringing the organisation into disrepute) rather than relying upon the company’s computer use policy, which are normally only concerned with misuse of company equipment.

We would be pleased to talk to any client requiring fuller advice concerning this developing area of law.