Caller v Newham University Hospital ET/3201242/10
Date added: 12 January 2012
unfair dismissal | gross misconduct | inappropriate use of work computer | offensive material
In this unusual case, an employee was dismissed for offensive material on his computer despite the fact that his manager, who lied during the disciplinary process, had been aware of some of the material and even emailed him a pornographic video at work.
Practical tips
This case serves as a reminder for employers to be consistent in how they deal with disciplinary proceedings, or risk facing unfair dismissal claims.
It is also an example of how tribunals will, where appropriate, place an employee’s alleged misconduct in context, for example taking into account the type of environment condoned by the employer.
Although the claimant’s behaviour in this case was inappropriate, his manager not only had impliedly approved of the offensive material in question, but was also proactive in sending some of it to the claimant and displaying some of it in the workplace.
Employers should expect higher standards from managers and expect them to set a good example to staff. |
At the time of the events concerned, Mr Caller had been a telephone operator at Newham University Hospital since 1997. He worked mainly at night, and was permitted to use his work computer for personal matters including sending and receiving emails and attachments, looking at the internet and downloading files. On 28 September 2009, the head of the hospital’s IT department, Mr Jeffery, discovered that Mr Caller’s user profile was very large in size, containing “thousands of files and folders”. On investigating these, Mr Jeffery found what he considered to be a high volume of “unauthorised and inappropriate material”, including music and graphic files containing pornographic or otherwise offensive images. Another employee, Mr Johns, began an investigation.
Among the “vast quantity” of material that had accumulated on Mr Caller’s profile on the work computer over many years were:
- a video entitled “mission impossible” that showed “live sexual intercourse”;
- a video entitled “shocking moments” that showed “someone in Asia apparently being electrocuted on top of a train”;
- a number of photomontages of “young women in alluring outfits” with photographs of the faces of female employees at the hospital (including Mr Caller’s manager, Ms Potter, and her manager, Ms Madigan) superimposed on the bodies;
- a number of pictures of Ms Madigan, including one with an offensive caption;
- many “thumbnail” (very small) photographs of “young women without many clothes on”; and
- photographs of DVD covers of adult films.
At some point in the investigation, Mr Caller alleged that Ms Potter had emailed him the “mission impossible” video at work and it appears that a colleague, Mr Clark, had sent him the “shocking moments” video. Mr Johns interviewed Ms Potter, and she provided a statement on 30 October 2009. She said that she remembered seeing the “mission impossible” video on a work computer (although she could not remember which one), and told Mr Caller that it was “disgusting”. She said that she had never seen the video as part of an email sent to her, and had never forwarded the video by email to anyone else.
Mr Johns showed Ms Potter the photomontages. In her statement, she said that she had not previously seen all of these, including some that involved Ms Madigan. She said that the montage of her was put on the wall in the department “some months ago”, and that she “did not think it was too bad”.
A disciplinary hearing took place on 8 and 12 January 2010, chaired by Ms Barr, to address the allegation of “accessing inappropriate material on the internet from a [work] computer, and the impact on work being delivered and the effect on patient care”. Mr Johns told the disciplinary panel that Ms Madigan had confirmed that the montage of Ms Potter had been on the wall of their shared office for some months.
Ms Potter told the disciplinary panel that “some” of the montages were on her office wall for “about half an hour” before she took them down, and said that “not much” banter went on in the department. When asked to respond to Mr Caller’s assertion that Ms Potter had emailed him the “mission impossible” video, she said that she recalled seeing it “but not sending it on”, and that she would “take full responsibility for this” if needed. Mr Clark confirmed that he had emailed Mr Caller the “shocking moments” video at work.
With regard to the impact of Mr Caller’s behaviour on his work and on patient care, the disciplinary panel was provided with an analysis prepared by Ms Potter. In mid-January 2010, Mr Caller was dismissed for gross misconduct, and his appeal was unsuccessful. By the time of his appeal, the tribunal found, Ms Potter had admitted that she had lied about sending him the “mission impossible” video. Mr Caller claimed unfair dismissal.
At the tribunal hearing, the hospital admitted that Ms Potter had emailed Mr Caller the “mission impossible” video, which the tribunal considered the most offensive of the sexual images stored on his work computer. It also admitted that Mr Clark had emailed Mr Caller the “shocking moments” video. Mr Caller had sent neither 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”. When the tribunal examined Ms Potter’s analysis of the effect of Mr Caller’s behaviour on his work, it found it unreliable, and the hospital conceded that it was “patently defective”.
The tribunal found that there was “very little evidence” that Mr Caller had accessed inappropriate material over the internet. There was a dispute between the parties over when Mr Caller became fixed with knowledge of the hospital’s strict computer policy, although the tribunal found that the earliest date that the hospital could demonstrate such knowledge was June 2009. Further, the policy was “muddied” by the practice of the managers, including Ms Potter and Ms Madigan.
Nevertheless, the tribunal considered that, even without the written computer policy, the storage on Mr Caller’s computer of the offensive material in question would “in any circumstances” be a basis for a disciplinary sanction. However, the tribunal considered that this case was complicated by the involvement of other staff, and the hospital’s comparative response to Ms Potter and her misconduct – it heard evidence that she had been given a six-month warning, much to the surprise of Ms Barr.
The tribunal found that Ms Potter had not only condoned the photomontages but permitted at least one of them to be displayed in her office and, in all probability, had viewed photomontages of Ms Madigan but had done nothing about them (Ms Madigan had appeared “outraged” when shown montages of herself by Mr Johns). Ms Potter had sent Mr Caller the “mission impossible” video and lied about it to Mr Johns, in her investigation statement and in the disciplinary hearing that led to Mr Caller’s dismissal.
The tribunal felt that it would have been apparent to the hospital that there was an “inappropriate culture of sexual banter supported by visual material” in the department. The tribunal included Ms Madigan in this, given that she had condoned the sexual banter by acquiescing in the display of at least one photomontage in her office for a number of months.
The tribunal found that, in all the circumstances, the decision to dismiss Mr Caller was unfair. He had been working at the hospital for over 12 years, since before there was a computer-use policy, and the hospital’s computer-use policy was "muddied". Although the hospital had a genuine and reasonable belief in the allegation that Mr Caller had misused his work computer, there was no evidence that it had ever considered the relative positions of Ms Potter and Mr Caller. The evidence of the disciplinary sanction against Ms Potter, in the context of Mr Caller’s disciplinary hearing, established on the balance of probabilities that the hospital gave “no consideration at all” to the disparity between its treatment of the two employees. The tribunal considered that the decision to admonish Ms Potter but dismiss Mr Caller was “perverse”.
The tribunal found that Ms Potter had presided over a department in which the inappropriate use of work computers was a regular feature and an aid to distasteful sexual banter. After the disciplinary investigation was under way, Ms Potter and Ms Madigan appear to have ensured that it was directed towards, focused on and effectively limited to Mr Caller.
The tribunal upheld Mr Caller’s claim, but assessed his contributory fault at 50%, and awarded him total compensation of just under £13,400.
Additional resources
- How to decide on an appropriate disciplinary penalty XpertHR outlines the considerations to be taken into account when deciding on an appropriate disciplinary penalty.
- XpertHR's policies and documents section provides the following model documents relating to misconduct dismissals:
- Deal with disciplinary proceedings the right way with these "how to" guides:
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