In Caller v Newham University Hospital, the Claimant was dismissed for inappropriate use of his work computer. Mr Caller was a telephone operator at a hospital and was allowed to use his computer to search the internet, send and receive emails and download files. Over a period of time the hospital became aware that Mr Caller's user profile was very large and contained a high volume of "unauthorised and inappropriate material", an investigation was instigated. The inappropriate material included:
- a video entitled "shocking moments" that showed "someone in Asia apparently being electrocuted on top of a train"
- a video entitled "mission impossible" that showed "live sexual intercourse"
- a number of photomontages of "young women in alluring outfits" with photographs of the faces of female employees at the hospital superimposed on the bodies including the Claimant's manager, Ms Potter, and her manager, Ms Madigan
- a number of pictures of Ms Madigan, including one with an offensive caption.
The investigatory officer showed Ms Potter the photomontages. She said that the montage of her was put on the wall in the department "some months ago" and she "did not think it was too bad". The Claimant alleged that Ms Potter emailed him the "mission impossible" video at work. Ms Potter denied this in her investigatory statement and at the disciplinary hearing. The Claimant was dismissed for gross misconduct for inappropriate use of his work computer.
When the claim was heard at Tribunal, the hospital admitted that Ms Potter had emailed the Claimant the "mission impossible" video and that Mr Clark, the Claimant's colleague, had emailed him the "shocking moments" video. The Claimant had not forwarded either of these videos to anyone else.
The Tribunal found that the hospital's strict computer use policy was "muddied" by the practice of the managers. The hospital's response to Ms Potter's behaviour was completely inconsistent with its treatment of the Claimant in reprimanding her with a six month warning. The Tribunal found that there was an "inappropriate culture of sexual banter supported by visual material" in the department. The Tribunal found that, all things considered, the Claimant had been unfairly dismissed. His contributory fault was found to be 50% and he was awarded total compensation of just under £13,400.
Best Practice
This case highlights that employers must be consistent in how they deal with employee misconduct to avoid unfair dismissal claims. While the employee's conduct was clearly inappropriate in this case, the tribunal put the conduct in context and took account of the kind of environment condoned by the employer. The fact that the Claimant's manager sent some of the offensive material and was given a very lenient disciplinary sanction added weight to the Claimant's unfair dismissal claim.
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