Conduct outside of work - can you dismiss an employee anyway?

27/04/2011

By Nick Hobden, Partner and Head of Employment

We live in an ever more complicated world and the lines between our professional and our private lives can easily become blurred. So what happens when an employee's conduct outside of work starts to impact upon their position within work?  The recent case of Gosden v Lifeline Project Ltd is quite illuminating.

The facts

Mr Gosden was employed by a charity that worked with drug-users in prisons. In October 2008, Mr Gosden sent an offensive email from his home computer to that of a colleague, Mr Yates, who worked for HM Prison Service (HMPS). The email, which was racist and sexist in content, encouraged the recipient to pass it on to others. Mr Yates forwarded the e-mail on to the work computer of a colleague at the prison at which he worked and HMPS then became aware of the email.

Mr Gosden was suspended from work and following various delays, formal disciplinary proceedings were commenced against him for gross misconduct. Mr Gosden was found guilty of potentially damaging Lifeline's reputation and breaching its equal opportunities policy. As a result, he was summarily dismissed. Mr Gosden appealed, arguing that the conduct concerned took place outside work time. He also felt that the investigation was incomplete. Having failed to succeed in his internal appeal, Mr Gosden brought claims in the Employment Tribunal for unfair and wrongful dismissal.

The decision

The Employment Tribunal decided in favour of the employer, concluding that the decision to dismiss Mr Gosden was within the range of reasonable responses open to his employer, bearing in mind the fact that the employee had sent the offensive email to an employee of one of its biggest clients. The potential damage to Lifeline's reputation could have been considerable.

Interestingly, of its own volition, the Employment Tribunal considered whether the Human Rights Act 1998 might have a bearing on the case. Could Mr Gosden's right to a private life come to his aid in any way? The Tribunal concluded that it could not. The email could not be said to be private. It was headed "It is your duty to pass this on!" As a result, Mr Gosden must have realised that this was exactly what recipients would do. The suggestion that such an email could therefore be said to be private simply did not stack up.

Comment

Previous case law has allowed for the prospect of conduct outside of work justifying dismissal, where that conduct impacts in some way up a person's ability to do their job. This case not only emphasises this point, but also shows how use of email and, by extension, social media, might increase the range of circumstances in which such dismissals can arise.

This case is only an Employment Tribunal decision. Therefore it is not one that should be relied upon too strongly. But it is helpful in guiding us as to the approach that Tribunals might take in such cases. No doubt we will see many more of these types of cases as we move forward. It is worth reflecting upon your disciplinary codes and procedures, as well as policies relating to equal opportunities, in order to consider whether any amendments are required to address these sorts of situations.