In a recent case, the Claimant was employed as an Operational Support Manager for Royal Mail for 27 years. He was dismissed for gross misconduct after 28 files containing obscene material was found in the Claimant’s workplace cloud storage account, which was protected by a personal password. On discovering these files, his employer informed the police. He was arrested at work, interviewed by the police, charged and bailed. It was well-known at his workplace that this had happened.
The employer had a policy that forbid employees sharing passwords and obtaining access to, or storing or publishing pornographic material. The Claimant accepted he knew these rules, but in his defence, argued that he did not know about the offending files in his cloud storage account until he was arrested and that he had not put them there and did not know how they got there. He asserted that there was a widespread practice of password sharing among employees, in order to facilitate efficient working.
His employer decided that the Claimant had breached their procedure by sharing his password with others. The manager who investigated the disciplinary allegations and took the decision to dismiss the Claimant concluded that the Claimant had indeed shared his password with other employees and that he had been responsible for downloading pornographic material into his cloud account. The manager concluded that password sharing was a serious offence, but would not on its own justify dismissal. His dismissal was on the basis of the downloading of the pornographic material.
The Claimant appealed the decision to dismiss him due to the downloading allegation, internally. His employer conducted a re-hearing, which was heard by a different manager. The new manager’s view was that the sharing of passwords would justify dismissal and upheld the original decision to dismiss on the basis of the password sharing. The Claimant brought a claim for unfair dismissal in the employment tribunal.
The employment tribunal’s decision
The tribunal found that there was an insufficient investigation into how the files came to be in the Claimant’s cloud account and no evidence to explain this, so any dismissal on the basis of this allegation would be unfair. It decided, however, the dismissal was fair, as it was within the band of reasonable responses to dismiss due to sharing of private passwords. The Claimant appealed this finding.
The EAT decided that the case should be remitted to a newly constituted tribunal. On a remitted hearing, the second tribunal found that the dismissal was unfair. This was because the manager who made the original dismissal decision decided that the password allegation on its own would not have justified dismissal. The manager that dealt with the appeal against dismissal thought that the password allegation did justify dismissal on its own and upheld the decision to dismiss but substituted a new reason for dismissal i.e. password sharing, rather than the downloading of images. In other words, by appealing, the Claimant found himself to be worse off because the appeal manager took a different and stricter approach to password sharing. The EAT found that it was not open to the appeal manager to impose a more severe penalty on appeal for the allegation of password sharing. As there was insufficient evidence to conclude that the Claimant was responsible for downloading the images (given that he had admitted the password sharing), it was not reasonable the employer to dismiss based on this allegation. The EAT awarded the Claimant a sum of just over £53,000 for unfair dismissal.
Whilst there is no statutory bar on imposing a higher penalty as a result of an appeal, the non-statutory Acas guidance on disciplinary procedures states that “an appeal must never be used as an opportunity to punish the employee for appealing the original decision, and it should not result in any increase in penalty as this may deter individuals from appealing”. In caselaw, the Court of Appeal has confirmed that an employer does not have the right to increase a disciplinary sanction on appeal, unless it expressly provides for this in its disciplinary procedure.
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