Comyn Kelleher Tobin, of Cork through its Employment Law Department will furnish an article each month for Legal-Island e-mail service readers. The articles will cover current or historic employment cases decided by the higher courts of Ireland and will include legal analysis on why the decision covered each month is of such importance to the employers.
Today's article looks at Governor and Company of Bank of Ireland v Reilly, a case which highlights the need to exercise care in suspending employees, not pre-determining issues and applying a sanction which is not unreasonable or disproportionate.
|CASE NAME AND REFERENCE:||Governor and Company of Bank of Ireland v Reilly (Judgment of Mr. Justice Noonan, 17th April 2015) 2015 [IEHC] 241|
|COURT OR TRIBUNAL:||High Court|
|JURISDICTION/SUBJECT MATTER:||Suspension, Dismissal for Gross Misconduct, Reasonableness and Proportionality, Email Policy, Access to Justice.|
James Reilly ("the employee") was initially suspended and then dismissed for gross misconduct following detection of inappropriate emails in his mailbox.
The employee was regarded as excellent, with an exemplary record, diligent and hard-working.
Bank of Ireland ("the employer") was notified by the ESB's security manager (as it then was) of inappropriate emails from a number of the employer's employees with attached images on 5 February 2009. Steps were taken to "lift" the particular email accounts. Arising from those steps, this employee's email account was "lifted" on 17th February 2009.
The following day, the employee was suspended and put on special paid leave with immediate effect. He was told there was an issue with emails, but was given no more detail, as the manager communicating the direction to suspend had no more details.
The employer's investigation detected inappropriate emails in the mailboxes of 5 staff members, but only 3 (including Mr Reilly) were suspended.
The employee acknowledged that he had circulated inappropriate emails/engaged in banter, but said he did so to mask the fact that he was gay.
The employee's representative was denied access to review the emails.
Prior to his dismissal, the employee was denied access to the distribution list.
The employee's mailbox was analysed for a two year period between February 2007 and February 2009. His sent mailbox contained 1139 documents of which 29 were considered inappropriate. The employer highlighted 7 of those emails as examples of breaches of the employer's policy on email use.
The Court considered each of the seven emails and summarised as follows:
- The EAT described the first email as "soft pornography", with images showing naked women on a bench.
- The second included a "bizarre" image captioned "Anything to declare?". This showed a man holding a shopping bag, with the image altered to show an Asian child in the bag. The intended meaning only becoming clear when the subject (a former celebrity and notorious paedophile is identified).
- The third email included "vulgar, crude and tasteless" juvenile humour.
- The next email included images of inadvertent self-exposure of two people in public.
- The fifth email included images of obese people engaging in sexual activity, with the subject line amended by the employee to refer to a junior colleague (and friend of the employee) being "in his first brothel".
- The sixth image showed two naked men on a couch. The employee had inadvertently sent this email to himself (from his phone to his work rather than personal email) and he deleted it without further circulation.
- The final email showed images of an extremely large naked woman.
DECISION TO SUSPEND
The Court was very critical of the decision to suspend and the manner in which the suspension was carried out, noting:
- The suspension of an employee is an extremely serious measure which can cause irreparable damage to reputation, even if it is only a holding suspension rather than a punitive suspension.
- In this instance, evidence was given by the employee that it was rumoured that his suspension arose from fraud or possibly a tiger kidnapping.
- A holding suspension can sometimes be justified to prevent repetition of conduct, to protect evidence or a person at risk, as well to protect an employer's reputation.
- The Court said that in general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.
- The Court noted that the person who made the decision to suspend the employee did not view the relevant emails prior to making his decision. The Court inferred that somebody else had directed him to do so, or that he had accepted someone else's view of the matter.
- No evidence was given to justify the suspension, such as demonstrating that it aided the investigation. In fact, the relevant evidence, namely the offending emails, was protected and forensically frozen with the "lifting" procedure mentioned previously.
- The Court took the view that realistically there was no danger of repetition while the investigation was ongoing.
- No explanation was furnished as to why only 3 of 5 employees were suspended, which led the Court to conclude that the employer had determined to make an example of this particular employee. The Court commented that this decision was "an expression by the bank of its view of the seriousness of the matter and its resolve to punish those responsible accordingly."
- No evidence was provided to justify the manner of the suspension. The employee was not given details of the reasons for his suspension or an opportunity to defend himself. It was a "fait accompli". He was "marched out the door never to return". The Court said it did it did not accept that basic fairness "did not require at least a rudimentary explanation of the reason for the suspension which admitted of the possibility of some exculpatory response".
The Court considered whether this breach of group email policy constituted gross misconduct which would justify dismissal, noting:
- Whether conduct is gross misconduct or simple misconduct is a qualitative judgement.
- Whether such misconduct justified dismissal then depends on the factual background.
- In this case, evidence was provided that circulation of inappropriate emails was widespread in the employer.
- The employer was well aware of the practice of inappropriate emails been circulated, stating that it was a rising trend.
- While the email policy was known in general form by employees, the employer did not take steps to make clear to its employees the likely sanctions that would be imposed.
- Accordingly, an employee might conclude that the email policy was honoured in breach more than in observance.
- If the employer was to impose a zero tolerance policy, employees should be put on notice that such a policy was being adopted.
- The Court accepted, as did the employee, that the emails were inappropriate and that sending them did constitute misconduct deserving some sanction.
- No evidence was provided of anyone being offended by the emails, complaining about the emails, or the employer actually suffering any loss or damage.
- The employee did not himself commence the circulation of any of the offending emails, apart from one he had inadvertently sent to himself only.
- The person who sent the most offensive email was based in head office and in fact was subsequently promoted.
- The effect of dismissal on this employee was catastrophic. The country was in crisis, his prospects of re-employment were poor, and the Court accepted that the dismissal destroyed his life/ruined his career
- The onus is on the employer to establish that there were substantial grounds justifying the dismissal. The Court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. The Court is not entitled to substitute its own judgement as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned.
- In this case, the Court concluded that not by any objective standard could dismissal be described as reasonable are proportionate.
The Court directed reinstatement saying that the employer had predetermined and manipulated the entire process from the start, visiting a grave injustice on the employee.
This decision highlights the need for an employer to show real reasons why a suspension is necessary.
The person who makes the decision to suspend must be able to justify the decision from their personal knowledge.
The employee should be offered the opportunity to provide an exculpatory explanation.
All affected employees should be treated equally.
Where breach of a policy could lead to dismissal, employees should be reminded of this, especially where an employer intends newly adopting a zero tolerance position.
In reviewing a decision to dismiss, the Court will have regard to the full factual background in it is consideration of whether such a drastic sanction is justified as being reasonable and proportionate.
- Access to
The Court was critical of delay in the employee getting access to justice. He gave evidence on eight occasions over six years. The Court left open the issue of breach of the State's obligations under the European Convention on Human Rights and it is likely that this issue will be considered again in other cases in the future.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.