Appeal wrongly imposed more severe penalty on employee

A Royal Mail employee who was dismissed when obscene material was found on his work cloud account has been awarded £53000 for unfair dismissal.

Facts

Obscene material was found in the Claimant’s cloud storage account at work. When confronted with the discovery, the Claimant denied knowledge of the material and suggested that an explanation might lie in the practice of ‘password sharing’ which, although expressly prohibited under the Royal Mail’s IT Code of Conduct, was, he said, both his own routine practice and the routine practice of others with whom he worked.

On the back of this admission, the Claimant was charged with (and ultimately found guilty of) two counts of misconduct: (1) for the obscene material in his cloud storage account; and (2) for sharing his password. Both allegations amounted to a breach of the Code of Conduct but at the disciplinary hearing the disciplinary manager decided that only the first count (1) was sufficiently serious to justify dismissal.

The Claimant appealed. The appeal officer confirmed the Claimant’s dismissal but did say that, if he had conducted the disciplinary hearing, he would have deemed both counts to have warranted dismissal.

The Claimant brought a claim for unfair dismissal in the employment tribunal (ET).

ET

Dismissing the claim, the ET ruled that, although a dismissal that relied on allegation (1) would not be fair (because there was no evidence that the Claimant was responsible for the obscene materials in the cloud account and there had been insufficient investigation into whether someone else could have done so via password sharing), a dismissal on allegation (2) was justified. The ET said that the appeal officer acted reasonably in concluding that allegation (2) justified the Claimant’s dismissal.

The Claimant appealed to the Employment Appeal Tribunal (EAT) on the ground that, since dismissal for allegation (1) would, on the facts, have been unfair, it was incumbent on the ET to consider whether the appeal officer’s different view could correct the earlier ‘defect’ in the dismissal.

EAT

The EAT allowed the Claimant’s appeal.

As the disciplinary officer would not have treated password sharing, on its own, to be sufficiently serious to warrant dismissal, and dismissal for the obscene material in the cloud account would have been unfair, the ET should have considered whether the appeal officer’s different view was capable of ‘curing’ the original decision. As it had failed to do so, the case was remitted to the tribunal for further consideration.

ET (after further consideration)

After being instructed to reconsider the case, the tribunal decided that Royal Mail’s appeal process “wrongly allowed for a different and graver sanction to be imposed without notice to the claimant that he was at risk of a more severe sanction.” Because the dismissing manager would not have dismissed the Claimant for password sharing alone the Claimant’s dismissal was unfair.

Royal Mail Group was ordered to pay £53,142 for unfair dismissal.

Choksi v Royal Mail Group Ltd

Comment

The EAT decision in this case illustrates an important point that an employer cannot use an appeal to increase the disciplinary penalty imposed on the employee. The same point is made in the non-statutory Acas guide Managing Discipline which states: “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”.

Warning: this news item is not a substitute for legal advice. The information may be incorrect or out of date and does not constitute a definitive or complete statement of the law. This news item is not intended to constitute legal advice in any specific situation. Readers should obtain legal advice and not rely on the information in this article.

 

 

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