Does sending sexually explicit images at work always justify dismissal?

Does sending sexually explicit images at work always justify dismissal?

A recent case has highlighted the already established need for context and consistency when taking disciplinary decisions, which many employers tend to overlook.

Facts
In Farnan v Sunderland Association Football Club, the Claimant was the Club’s International and National Marketing Director.

Having looked through his work emails, the Club alleged breaches of confidence and other matters, which including sending a lewd email and making derogatory comments.

Legal decision
The High Court found that the Claimant had, in fact, committed serious and repeated breaches of contract by ‘banking’ information about sponsorship bids, which he sent to his wife’s private email address (which he purported was for administrative support but was, in fact, to keep evidence if he ever ended up in litigation with the Club).

The Claimant had also made use of confidential bid documents for his own purposes in seeking employment, briefed a journalist against clear Club policy and wrongly disclosed a sponsorship agreement to a third party.

The Court therefore found that the Claimant’s dismissal without notice by the Club was justified.

The Court however criticised the Club for part of the case it made against the Claimant. The Court ruled that the Club was not justified in treating as gross misconduct that the Claimant had emailed a Christmas card showing ten bare breasted women wearing Santa hats, stating, “Breast wishes for Christmas”.

The Club did not take into account other instances it had previously tolerated, including a birthday card sent by work email from a co-director to the Claimant’s wife which stated, “Happy Birthday all the breast” (which the CEO of the Club appeared to accept as a typographical error, requiring more care in the future…)

Tips for employers
Employers should aim to have robust disciplinary procedures in place to help justify and defend the decision they make.

In addition however, employers should be seen to be acting fairly. Employers should take care to ensure that they are consistent in their treatment of misconduct and disciplinary issues, especially if a tolerant attitude had been adopted in the past to other employees in similar circumstances.

If you would like to discuss your business’ disciplinary polices and procedures, please contact Jasmin Dhillon at jad@blasermills.co.uk or on 01494 478671.