Unfair dismissal verdict for accessing porn at work was “perverse”

Mr P Thomas was a lead Personnel Officer with London Borough of Hillingdon. He was dismissed for accessing pornography on the internet from his work computer on several occasions. The council had a staff policy in place which prohibited the accessing of pornography and made it plain that such behaviour would amount to misconduct.

Mr Thomas brought a claim of unfair dismissal before an Employment Tribunal in Watford. He won his case by arguing that while his actions did amount to misconduct, they did not amount to gross misconduct. Dismissal can be justified in cases of gross misconduct; but in cases of mere misconduct, the appropriate initial action is disciplinary proceedings. Usually, this would take the form of a formal oral warning followed, if appropriate, by a formal written warning. The London Borough of Hillingdon appealed the ruling.

It convinced the Employment Appeal Tribunal that the Watford Tribunal had erred by substituting its own view of the seriousness of Mr Thomas' conduct for that of the employer's – rather than considering whether the employer's decision to dismiss was within the range of reasonable responses of the employer.

The council also argued that the decision that dismissal of Mr Thomas was unfair was a "perverse" decision. The Employment Appeal Tribunal agreed.

The case highlights the importance for employers to cover internet and e-mail use in an effective staff policy, which should also clarify what amounts to gross misconduct.

This case was decided on 26th September 2002 and reported by the Employment Appeal Tribunal on 15th January 2003.