The claimant, a senior manager, was dismissed for sending pornographic material by email to a less senior colleague, in contravention of the employer's IT security policy. The Employment Tribunal found that the respondent had made out its case that it had a potentially fair reason for the dismissal of the claimant based upon his conduct and that the respondent had in its mind reasonable grounds upon which to sustain that belief, following reasonable investigation, at the time of the decision to dismiss the claimant. However, they concluded that the decision of the respondent to dismiss the claimant was grossly disproportionate and fell outside the range of reasonable responses, having first reminded themselves of the danger of substituting their views for those of the respondent. They considered various mitigating factors including the fact that another more senior employee had earlier sent sexist jokes to the claimant and said that the clamiant's offence was at the lowest end of the spectrum. They therefore upheld the claimant's claim of unfair dismissal.

At the EAT it was argued for the respondent that the Tribunal had substituted their own view of the reasonableness of the sanction of dismissal rather than considering whether the dismissal fell within the band of reasonable responses of a reasonable employer. They had also failed to recognise the senior position of the claimant and that he should have been setting an example to others. Further they were unable to assess the comparable gravity of the pornographic material with the sexist jokes because they had not seen the jokes. The EAT agreed with the respondent, saying that it was not enough for the Tribunal to articulate against substituting their opinion for that of the respondent; it must be carried out in practice. Appeal allowed.

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Appeal No. UKEAT/0506/09/DM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19 August 2010

Before

THE HONOURABLE MRS JUSTICE SLADE

MS V BRANNEY

MR J R RIVERS CBE

THE ROYAL BANK OF SCOTLAND GROUP (APPELLANT)

MR M LINDSAY (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MS ZOE THOMPSON (of Counsel)
Instructed by:
Messrs Reed Smith LLP Solicitors
Broadgate Tower
20 Primrose Street
London
EC2A 2RS

For the Respondent
MR MARK LINDSAY (The Respondent in Person)

UNFAIR DISMISSAL – Reasonableness of dismissal

The Claimant, a manager, was dismissed for sending pornographic material to a more junior employee.

The Employment Tribunal erred in substituting its own view of the appropriateness of the sanction of dismissal rather than considering whether dismissal was within the range of reasonable responses of a reasonable employer in the circumstances. Finding of unfair dismissal set aside. Case remitted to a different Employment Tribunal.

1. The Royal Bank of Scotland appeals from the judgment of an Employment Tribunal entered in the register on 8 September 2009 that Mr Lindsay had been unfairly dismissed. We will refer to the parties as Claimant and Respondent, their titles before the Employment Tribunal.

1. Having found that Mr Lindsay, the Claimant, was dismissed for misconduct, the Employment Tribunal concluded that the Respondent had carried out an appropriate and reasonable investigation by the time of its decision to dismiss, that the Respondent had genuinely formed the belief that Mr Lindsay had been guilty of misconduct and it, therefore, directed itself that the essential question in the case was whether the Respondent's decision to dismiss fell outside the range of reasonable responses of the reasonable employer. The Employment Tribunal answered that question at paragraph 55 of their judgment. They held that the decision of the Respondent to dismiss the Claimant was grossly disproportionate and fell outside the range of reasonable responses. Accordingly the Claimant's unfair dismissal complaint was upheld. It is from that conclusion that the Respondent appeals.

1. The Respondent contends that the Employment Tribunal erred by substituting their view as to the appropriate sanction for the Claimant's conduct, rather than applying their self-direction to assess whether objectively the dismissal of the Claimant was within the range of reasonable responses of the reasonable employer in all the circumstances.

1. The Claimant was employed by the Respondent from 1 April 2007 until his dismissal on 6 October 2008. He worked in the management role of regional head of business development in the invoice financing business of the Respondent. His role was to head up a team whose task it was to attract clients to the Respondent. Amongst the employment policies of the Respondent which applied to the Claimant was the group's IT security policy. That set out generic descriptions of inappropriate material and levels of disciplinary action which may be taken for possession of such material at work.

1. The policy set out three categories of material, A, B and C. Category B concerned:

"Material which may be legally possessed, but which may nevertheless be classed as obscene such that its publication for gain may constitute an offence:

* Material which is inappropriate for the workplace

* Soft core pornography

* Sexual jokes"

On the published policy matrix against Category B the potential level of disciplinary action is set out as:

"Gross Misconduct or Misconduct

Each case will be reviewed individually. Employee action on receipt of the material will impact on the disciplinary action taken."

It is to be noted that in the introduction to the matrix the policy contains the following:

"Please note that the examples given are not exhaustive; depending on content it is possible that material sharing the same generic description (e.g. sexual jokes) may fall within separate categories."

1. In the course of an investigation into other allegations against the Claimant in 2008 his email account was accessed. An email sent by the Claimant to a Mr Dearden, another employee of the Respondent, dated 24 June 2008, was seen. That email had the heading "FW: European Soccer Uniforms XXX". It contained eight untitled JPEG attachments. It had been sent to the Claimant by a Mr Donnelly on that day. The Employment Tribunal found that the images featured naked women made up to appear as if they are wearing football kits. The Employment Tribunal found that three images in particular were sexually explicit.

1. On 1 October 2008 the Claimant attended a disciplinary meeting convened to consider five allegations against him, one of which related to the sending of pornographic images. The disciplinary hearing was conducted by Miss Saville. Miss Saville concluded that three of the allegations, including that concerning the sending of the pornographic images, were made out and she decided to dismiss the Claimant for gross misconduct. Miss Saville considered that each one of the matters which she had found to be proved against the Claimant on their own would have been sufficient to warrant a decision to summarily dismiss the Claimant.

1. The Claimant appealed. The appeal hearing took place on 11 November 2008 and it was conducted by Mr Morrin. By a decision dated 30 January 2009 Mr Morrin upheld the Claimant's appeal on all issues save for the finding that the Claimant had abused the Respondent's IT facilities. Mr Morrin dismissed the Claimant's appeal against the sanction of dismissal for that offence.

1. At paragraph 43 the Employment Tribunal found:

"We find that the Respondent genuinely believed that the Claimant had forwarded an email containing pornographic images to a junior member of staff on 24 June 2008. We agree with Miss Thompson that Mr Morrin could reasonably conclude that the Claimant was sitting next to or near Mr Dearden on the day in question, that he opened it, viewed its contents and forwarded it to Mr Dearden."

1. The Tribunal held:

"45. We also conclude that the Respondent carried out such investigation into the matter as was fair and reasonable and within the range of reasonable responses in the circumstances.

…

47. Accordingly, it is the judgment of the Tribunal that the Respondent has made out its case it had a potentially fair reason for the dismissal of the Claimant based upon his conduct and that the Respondent had in its mind reasonable grounds upon which to sustain that belief, following reasonable investigation, at the time of the decision to dismiss the Claimant.

…

55. The Tribunal has been extremely careful not to substitute its own view for that of the employer. However, in this case, the Claimant's offence was towards the lowest end of the spectrum. This is not, in our judgment, one of those cases where the misconduct in question can be said to be such that any employee would know or believe that it would result in instant dismissal (whether set out in a policy or not). It was a one-off, isolated incident. It was sent by the Claimant shortly after one of his senior managers had forwarded sexist material concerning female drivers. The sender of the email to the Claimant was well-known to the Claimant and was recognised by the Respondent as being an introducer of work. The recipient was well-known to the Claimant and to the Claimant's own sender. It is our judgment that the decision of the Respondent to dismiss the Claimant was grossly disproportionate and fell outside the range of reasonable responses. Accordingly, the Claimant's unfair dismissal complaint is upheld."

1. Ms Thompson, counsel for the Respondent, relies on four matters in support of the contention that the Employment Tribunal substituted their own view of the reasonableness of the sanction of dismissal rather than considering whether the dismissal fell within the band of reasonable responses of a reasonable employer. In support of that contention Ms Thompson relies on four matters.

1. First, in paragraph 48 of the judgment, in setting out the mitigating features of the Claimant's offence the Tribunal introduced their own mitigating features. Ms Thompson draws attention to the fact that, having set out the mitigating features to which she had drawn attention which were considered by the Respondent, the Employment Tribunal added:

"To that, we might add that the Claimant knew Mr Donnelly and Mr Donnelly in turn knew Mr Dearden. [Mr Dearden was the end recipient of the pornographic material] In other words all of the three individuals in the chain were well-known to each other and had forged business relations together."

The Tribunal also added as a mitigating feature:

"It is also accepted by the Respondent that Mr Noble, who is senior to the Claimant, did send inappropriate sexist emails although those were not of a pornographic nature."

1. Ms Thompson contends that the Employment Tribunal erred in relying on the mitigation introduced by them in that those matters were not relevant to the employer's decision. Their introduction indicates very clearly that the Tribunal made their own assessment of the gravity of the Claimant's conduct rather than assessing the reasonableness of the approach of the Respondent to it.

1. Secondly, Ms Thompson relies on paragraph 48 of the judgment in another regard. She contends that the Tribunal's judgment in that paragraph shows that the Tribunal failed to set out perhaps the most aggravating feature of the Claimant's offence; a feature which was relied upon to a considerable extent by the Respondent in taking the decision to dismiss the Claimant. That was the senior position that the Claimant held within the Respondent organisation. He was a manager responsible for managing other staff and that he could be expected to set an example to such staff.

1. Thirdly, Ms Thompson says that it is clear from comments of the Employment Tribunal in paragraphs 54 and 55 of their judgment that they relied upon their own view of the seriousness of the pornography and also took into account that emails containing sexist jokes had been sent to the Claimant by a more senior employee. It is to be noted that the Employment Tribunal did not have before it the text of those allegedly sexist jokes, nor indeed did the employers. All that the Tribunal had before them to make their observations was the title of those emails: "Why middle aged women should stay at home" and "Women Drivers…eh?". The Employment Tribunal did not have any further material about those emails to enable them to assess their comparable gravity with the sexually explicit pornographic material which they did have before them.

1. Fourthly, it is said by Ms Thompson that the Tribunal erred by making their own assessment of what would be the least serious of Category B infringing material according to the matrix which forms part of the Respondent's IT policy. It was their own assessment of the seriousness of the pornographic material which led the Employment Tribunal to comment that infringement of the IT by possession in forwarding such material should not be regarded as gross misconduct.

1. The Claimant, appearing in person, contends that Ms Thompson's approach is over analytical and that we should not go through the Employment Tribunal judgment line by line. In effect, we should not go through it with a fine toothcomb. Read as a whole, Mr Lindsay contended, that the Employment Tribunal reached a conclusion which was open to them on the evidence.

1. The principles of law relied upon by both the Respondent and the Claimant are clear and correctly stated by them. The task of the Employment Tribunal in these circumstances was to consider whether the employer's conduct in dismissing the Claimant fell within the band of reasonable responses to the employee's conduct. The Employment Tribunal in these circumstances must not stray into taking that decision by relying upon what they would have decided. A decision of an Employment Tribunal must not be subject to a fine toothcomb analysis and it should not be interfered with unless there is a demonstrable error of law, or perversity.

1. The Employment Tribunal stated in their judgment that they had been extremely careful not to substitute their own view for that of the employer. It is not sufficient to articulate that correct approach; it must be carried out in practice. In our judgment the contentions of Ms Thompson, that the Employment Tribunal substituted their own approach and judgment for that of the employer and failed to consider whether the sanction of dismissal as a response to the Claimant's conduct was one which was within the band of reasonable responses of a reasonable employer is well made out.

1. In our judgment the Employment Tribunal erred in their reliance as a mitigating feature on at least one of the two matters relied upon by Ms Thompson as having been added by them. That was the Tribunal's reliance on emails sent by Mr Noble which were referred to them in their judgment. As we have observed, neither the Employment Tribunal nor the Respondent were in a position to assess the gravity of those emails. The Tribunal did not see their content, only their titles. Yet, the Employment Tribunal did apparently rely on the sending of those emails by a more senior manager to the Claimant as justifying a more lenient view to be taken of the pornography which the Claimant forwarded on to a more junior employee.

1. Secondly, the Employment Tribunal erred in omitting what was on the evidence a serious consideration in the mind of Mr Morrin in upholding the decision to dismiss the Claimant. Ms Thompson took us to a number of passages in which the managerial position of the Claimant had been referred to as a significant factor in the decision to dismiss. We refer to one as an example. In re-examination Mr Morrin said, as appears from a document in our bundle at page 71 at paragraph 34:

"He adds that the behaviour of senior managers within the business is important because, as Managing Director, he is looking to senior managers to lead by example. This is undermined when senior managers do not follow the Group's standards of behaviour. The Claimant was in the role of senior manager. He was a regional director responsible for a team of people, not a small group of people in the office, including 6 other associate employees."

1. Thirdly, in our judgment, the Employment Tribunal made their own assessment of the relative gravity of the pornography forwarded by the Claimant and the assumed sexist emails sent by Mr Noble. They relied on their views and erred in so doing. They also erred in basing their views on an assumption without evidence of the contents of those emails.

1. Fourthly, the Employment Tribunal made their own assessment of the gravity of the offence of the Claimant and their own assessment of the seriousness of the material forwarded by the Claimant within the matrix on IT policy. They said in paragraph 55 of the judgment: "However, in this case, the Claimant's offence was towards the lowest end of the spectrum." In our judgment, they erred in making their own assessment rather than considering whether the assessment and judgment made by the Respondent was one within the range of reasonable responses of a reasonable employer in the circumstances.

1. In our judgment, the Employment Tribunal erred in substituting their own view of the reasonableness of the sanction of dismissal rather than considering whether the dismissal fell within the range of reasonable responses of a reasonable employer. Accordingly, this appeal is allowed. We remit the case to a differently constituted Employment Tribunal to decide whether the sanction of dismissal was within the range of reasonable responses of a reasonable employer in the circumstances. Dependent on this determination, the remission is for the Employment Tribunal to determine the fairness of the dismissal within the Employment Rights Act 1996 section 98(4).

1. The relevant findings of fact and determinations are otherwise to stand. Those include the conclusions and decisions of the Employment Tribunal on all the factors in British Home Stores Ltd v Burchell [1978] IRLR 379, namely the belief by the employer that the employee was guilty of misconduct, the reasonableness of the investigation and any other steps up to the assessment of the reasonableness of the sanction imposed.