A recent ruling by the Employment Appeals Tribunal (EAT) highlights, once again, the issue of improper use of e-mail and internet at work.
A Dublin firm sacked a sales representative after she went through the private email account of her line manager. However the EAT held that, in the circumstances, the claimant’s dismissal was a disproportionate sanction and awarded her €15,000.
A company log showed that the claimant had viewed and printed 75 emails in a six-minute period, while her manager was out of the office. The firm told the EAT that the claimant’s actions amounted to an erosion of trust and she was dismissed from her employment following an investigation and disciplinary process.
At the EAT hearing, the claimant accepted that she should have been subject to a disciplinary sanction but did not believe that she should have been dismissed.
The EAT held that the material which the claimant viewed was not commercially sensitive in any sense but related to her personally. She might have been entitled to that information under the Data Protection Acts 1988 and 2003 but that issue that did not arise in this case.
Given that the material accessed related to the claimant herself, the EAT was not convinced by the ‘erosion of trust’ argument, and therefore found that the dismissal was a disproportionate sanction.
The claimant assessed her loss of earnings at €34,334, however the EAT had regard to the fact that the claimant was in the wrong, and held that the sum of €15,000 was "just and equitable having regard to all the circumstances".
This case was decided on its facts, in particular, in assessing proportionality, the EAT attached importance to the fact that the claimant admitted from the outset that she had read and printed the e-mails and attachments, and that the information accessed related to the claimant herself. If the circumstances had been otherwise, the dismissal may well have been upheld.
The decision shows the importance of employers having an ‘Email and Internet Acceptable Use’ policy in place, which employees are clearly informed of, and which sets out the extent and purpose of any email and internet monitoring, and of any disciplinary action and sanctions that might be imposed in respect of any breaches of the policy.