The People Bulletin

Employee who used work computer 'inappropriately' unfairly dismissed

26 January 2012

This unusual case highlights that employers must be consistent in how they deal with employee misconduct to avoid unfair dismissal claims.

In Caller v Newham University Hospital, Mr Caller was dismissed for inappropriate use of his work computer despite his manager Ms Potter, who lied during the disciplinary process, being aware of some of the content and even emailing him some of the pornographic content herself.

Background

Mr Caller had been working at Newham University Hospital as a telephone operator since 1997. He worked mainly at night, and was allowed to use his computer to search the internet, send and receive email and download files. On 28 September 2009, the head of the hospital’s IT department, discovered that Mr Caller’s user profile was very large in size and contained thousands of folders and files. On investigating these, it was found that Mr Caller’s computer contained a large volume of unauthorised and inappropriate material, including music and graphic files containing pornographic and offensive images. As a result of this another employee began an investigation.

Investigation

The investigation found a number of inappropriate files including:

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 Mr Caller’s manager, Ms Potter, and her manager, Ms Madigan; and
a number of pictures of Ms Madigan, including one with an offensive caption.

During the investigation Mr Caller claimed that Ms Potter had emailed him the 'mission impossible' video, and another colleague, Mr Clark, had sent him the 'shocking moments' video. Mr Clark confirmed that he had emailed Mr Caller the 'shocking moments' video but Ms Potter recalled that she has seen the video but denied sending it on in both her investigatory statement and at the disciplinary hearing. Mr Caller was dismissed for gross misconduct for inappropriate use of his work computer.

The tribunal

At the tribunal, the hospital admitted that Ms Potter had emailed the Mr Caller the ‘mission impossible’ video and that Mr Clark, another colleague, had emailed him the ‘shocking moments’ video. Mr Caller had not forwarded either of these videos to anyone else.

The hospital admitted that at least one of the photomontages, that of Ms Potter’s head on the body of a young woman in a bikini, had been displayed in her and Ms Madigan’s shared office for “some months”.

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 Mr Caller 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, Mr Caller had been unfairly dismissed. His contributory fault was found to be 50% and he was awarded total compensation of just under £13,400.