In a key decision, the High Court (Bank of Ireland -v- Reilly [2015] IEHC 241) has ordered that an employee of Bank of Ireland be reinstated to his role after the bank had dismissed him for sending inappropriate emails. This case raises key issues that every employer will learn from, particularly when considering the importance of consistency when considering potential gross misconduct. Background This case concerned an employee, Mr. Reilly, who all agreed to be “an excellent employee with an exemplary record who was diligent and hard-working”. In February 2009, an email captioned “Hangover Brilliance” was forwarded by a different bank employee to four other members of including Mr. Reilly. One of those staff members sent the email on to persons both inside and outside the bank and it ultimately made its way into the ESB group email system, where it was detected by an IT security manager. It was at this point that the bank became aware of the email chain. Internal Investigation The bank conducted an internal investigation which involved reviewing the inboxes of the relevant members of staff. The investigation discovered a number of inappropriate emails with attached images in 5 different staff member’s inboxes. However, only 3 employees were suspended, one of whom was Mr. Reilly. The bank concluded, following a review of Mr. Reilly’s sent emails over a two year period, that 29 emails he had sent were inappropriate. The Court considered a number of these emails, many of which were separately described as “bizarre”, “soft pornography”, and “vulgar, crude and tasteless”. One email, for example, showed several naked women on a beach, whereas another email contained a photo of a former celebrity and notorious paedophile carrying a shopping bag with a superimposed image of a child in the shopping bag. Decision to Suspend Following the internal investigation the bank decided to suspend three of the five employees in line with the company policy which stated that “An employee may be placed on special paid leave in order to facilitate the proper conduct of the disciplinary procedures”. This decision/step to suspend was criticised by the High Court for a variety of reasons:
- From the outset the Court noted that suspension is an “extremely serious measure which can cause irreparable damage to his or her reputation and standing”.
- The person who made the decisions to suspend the employee did so without having reviewed any of the evidence found in the investigation.
- The disciplinary policy stated that suspension should only occur to facilitate the disciplinary procedure. The court concluded that as Mr O’Reilly’s email account had been forensically frozen there was no need to suspend him as there was no way he could interfere with the investigation.
- In the circumstances, the likelihood of Mr O’Reilly reoffending once the investigation had commenced “was to all intents and purposes nil”.
- The Court were particularly concerned that only three of the five employees had been suspended. As such, they concluded that the reason for suspension was not to aid in the investigation but was instead a conclusion by the bank that the emails found in those three employees’ inboxes were somehow more serious.
- Finally, Mr. O’Reilly had been suspended by a manager, who provided little or no explanation as to the reason for suspension. Indeed, the manager had done so on foot of an instruction from Head Office giving the employee no opportunity to defend himself at this stage as the manager wasn’t the person who had reached this decision.
Company Policies and Zero Tolerance The Court were also concerned with how the bank had implemented company policy. In this respect the Court noted that the bank had been aware that sending inappropriate emails “was a rising trend”. As such, it was concluded that the bank ought to have notified all employees of the issue with sending such emails and the likely sanctions that could follow, up to and including dismissal, particularly if a zero tolerance policy was to apply. It was also noted that the most serious/offensive email, concerning the child in the shopping bag, had been originally sent by a Head Office employee who had not been subjected to disciplinary procedures and who had subsequently been promoted. Reasonableness of Dismissal Ultimately, the decision to dismiss Mr O’Reilly was deemed unfair for a variety of reasons. The Court certainly took the view that the emails were inappropriate and warranted some form of disciplinary sanction. However, the Court were concerned that the employee had been dismissed even though there was no evidence that the bank had suffered any loss or damage due to these emails being sent. In addition, it was noted that the employee himself had not started any of the email threads and had instead been engaged in threads that had been started by other employees. The Court stated that it had to weigh up on the impact of the employee’s conduct on the bank as against the impact of the bank’s decision to dismiss on the employee. In the circumstances it was deemed that impact was greater on the employee as the employer had shown no evidence of loss or damage, whereas the employee had little hope of re-employment in the industry at a time when he had recently purchased a new home. Taking this into account, in addition to the suspension and company policy issues outlined above, the dismissal was deemed unfair and the Court stated that the employee should be reinstated. This means that the employee would have to be returned to his job and this normally involves paying the employee any loss of pay he suffered in the meantime. Considering he was dismissed in 2009 and the Court reached this decision in 2015, that would be quite a large bill to pay. Conclusion This case raises a number of important points that every employer can learn from.
- Firstly, it is not safe to have a lax approach to a company policy but then dismiss an employee for breaching it down the line. If a policy is so important as to warrant dismissal then this should be clearly explained to all employees.
- If a policy is breached then consistency is essential. An employer will need very strong justification as to why, for example, one employee has been dismissed for breaching a policy whereas another employee has not been disciplined at all.
- As in this case, the “actual” impact on the employer is important. Just because certain types of employee behaviour is listed as gross misconduct in an employee handbook does not mean that every instance of such behaviour will warrant a gross misconduct dismissal. In this respect, the impact of the behaviour on the employer and whether or not the employee acted deliberately or with malice are two very important considerations.
If you have any questions on the above article or if you have any query in general about disciplinary procedures then please do not hesitate to contact the 24 Hour Advice Service on 01 855 5050.
