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Employee sending offensive email from home is dismissed fairly

BY Gerry O'Hare
Employment Law & HR
BG Purple

It should be obvious to most employees that the outcome of emailing offensive images or jokes within the workplace is potential dismissal.

However, what about situation where an employee sends an offensive chain email, outside working hours and from his or her home computer, which nonetheless makes its way into the Company's email system later down the chain. This is the scenario that was explored by the Employment Tribunal in the recent case of Gosden v Lifeline Project Ltd.

Mr Gosden was employed by LP, a charity that assisted drug users in prisons. HM Prison Service (HMPS) was one of LP's largest clients and Mr Gosden worked at Moorland prison. Mr Gosden was disciplined by the governor of Moorland prison for his attendance, given a written warning, and banned from working at Moorland. Mr Gosden was then transferred to Lindholm prison.

Towards the end of 2008, Mr Gosden sent an offensive and racist email from his home computer to the home computer of Y, an employee of HMPS who worked at Moorland. The email signed off with the sentence "It is your duty to pass this on." On receiving this email, Y forwarded it on to a colleague at Moorland where it entered the HMPS's computer network. HMPS investigated this and Mr Gosden was excluded from all HMPS prisons in Yorkshire and Humberside. As a result, LP suspended Mr Gosden and after carrying out investigations found him guilty of damaging LP's reputation with HMPS and dismissed him for gross misconduct.

At Tribunal, Mr Gosden unsuccessfully argued that he had not personally misused HMPS's IT system and could not possibly be held responsible for Y forwarding the email. However, the Tribunal agreed with LP that by sending the link to Y, Mr Gosden was a link in the chain that led to the dissemination of that email into HMPS's computer system. In reaching this outcome, the Tribunal held that a reasonable employer would be entitled to see what Mr Gosden had done as capable of damaging its reputation. Accordingly, the decision to dismiss was within the band of reasonable responses.

Although not a point raised by the Claimant, the Tribunal also considered the issue of privacy and whether or not it would be fair for an employer to dismiss for conduct occurring out with the workplace. The Tribunal opined that if the email had been private correspondence written by Mr Gosden and intended solely for Y then it may well have found that privacy attached to it. However, on the basis that the email was sent with the express intention that it be passed on - "it is your duty to pass this on" - then it could not be considered confidential communication.


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