Bank's failure to explain staff policy makes dismissal unfair

As part of its IT security policy, the Royal Bank had developed a matrix or grading system to deal with e-mail and internet abuse by employees. The matrix graded offensive material into separate categories and detailed the appropriate sanctions that would apply to any employee found to have sent or received such material.

Following an investigation, the bank took disciplinary action against 23 employees who had breached its IT security policy. Among them was Miss S J Goudie, who was eventually dismissed for gross misconduct.

She took her case to an Employment Tribunal and won, on the grounds that while she had been aware of the IT security policy, she had not been informed of the matrix prior to the disciplinary process being carried out. The Tribunal reasons that, as she was unaware of the basis on which her case would be decided, she was unable to conduct her defence properly.

The Royal Bank appealed to the Employment Appeals Tribunal, but without success.

Robyn McIlroy, an employment law specialist with Masons, the international law firm behind OUT-LAW.COM, said:

"This case is a timely reminder that employers can trip up even on basic points of procedure when dealing with breach of rules governing e-mail and internet use. The disciplinary procedure followed by employers will always be scrutinised by an employment tribunal in the context of whether a dismissal was fair and reasonable in all the circumstances."

McIlroy explains that it is fundamental to the fairness of a dismissal that an employee facing disciplinary action should be given sufficient detail of the case against him or her to enable a full and detailed response to the particular allegations.

"That may, depending on the circumstances, also require the employee to be given an opportunity to respond to any factors which the employer considers material in deciding the appropriate disciplinary sanction," she adds.

In the Royal Bank case, the Employment Appeals Tribunal ruled that the matrix used by the employer to determine the grading of the e-mail material in question (and as such the potential disciplinary sanction imposed) was so fundamental to the outcome of the disciplinary process that the employee ought have been made aware of that in the context of the disciplinary process.

"Does it necessarily follow from this decision that employers have to disclose such information to all employees at the stage of implementing a new policy governing email and internet use?," asks McIlroy.

"Probably not," she says, "but it may help employees to understand the permitted parameters of personal e-mail use, and certainly such any factors should be disclosed in the context of a fair disciplinary procedure before dismissing an employee for breach of the policy."