A recent EAT case involving a large financial institution has shown that Tribunals do not respond well to cases where the decision has clearly been made prior to any formal hearing taking place.
The case concerns employees dismissed for inappropriate use of the Company's email system and where the Company took a firm, and in retrospect pre determined, approach to dealing with those involved. This case was widely publicised in the media when the issues came to light.
In the case of A Employee -v- A Employer (UD2632/2009) the employee worked at the large Financial Institution from 2001 - 2009, and was dismissed along with two others following the Company's investigation into inappropriate use fo the company's IT system. five employees were subject to disciplinary action, three of which (including the claimant) were suspended with pay pending the disciplinary hearing. the other two were not, and the end result was that the three suspended were ultimately the ones dismissed, and the two not suspended received lesser sanctions.
In the hearing the employee gave evidence that the email culture was rampant throughout the business and of the offending emails selected by HR a number of them had been sent on to him by other members of staff. In the initial disciplinary hearing the employee was not shown all the emails but just a sample, and not emails themselves but just the pictures associated to them. The employee stated he was attempting to mask his own sexuality by sending these pictures on and did not even read the content. He was dismissed with two others, and the remaining two received a lesser sanction (one a final written warning and the other a verbal caution).
In the decision the tribunal condemned the HR departments handling of the process by only suspending three of the five employees, and low and behold those were the three that were dismissed. The tribunal formed the opinion that "the outcome of the disciplinary hearing was predetermined, and at least some of the key decision makers in the disciplinary did not exhibit the required independence and were guided by the Group Human Resources to the outcome which had been decided by the Human Resources from the outset. "
The Tribunal had sight of the emails and stated that they did contravene the Company IT usage policy and that the content was inappropriate, however the steps taken by the employer to address this were inadequate and only acted on foot of an external complaint and only took action against those mentioned in the complaint. the tribunal concluded that as the employee was selected for dismissal without "sufficient rationality" the dismissal was substantively unfair. The disciplinary was driven to manage the image of the Company and not for the proper purposes od a disciplinary which is to "modify behaviour".
The Tribunal ordered reinstatement as being the appropriate remedy in this case.
Impact for Employers
What was interesting to note was a section in the determination which stated
"Irish employment law supports a wide discretion for an employer to set what it considers is the standard of acceptable behaviour in the workplace and to enforce that standard by disciplinary action up to and including dismissal. However, the Tribunal has long-held that the relevant standard is the de facto standard of acceptable behaviour in the workplace which might not be the same standard as appears in the policy documents of that employer. Where the defacto standard in all or a substantial part of the workplace falls below the official standard then it is appropriate for the employer to advise its employees of the change in standard and with sufficient clarity that real change is required and that the warning itself is not just the further expression of mere aspiration. "
if an employer wants to take a firm line on a behaviour it is important that the fully communicate this to the staff, a half-hearted policy and enforcement will not be deemed to be acceptable and as such employers work to set the new standard of behaviour by which all employees must adhere to. If action is to be taken then it should be consistent throughout the business, and not just a marketing or image control exercise. it should be consistent to all staff and carried out to modify behaviour as opposed to be seen to have taken a firm hand on the matter with external parties. This becomes very important where a Company receives a complaint from a customer, they will naturally want to be seen to have acted on this (of fear of losing the customer) however they should ensure that the nature of the complaint is not due to a wider issue and prevalent amongst all staff members.
