The facts of the case
Mr Choksi worked for Royal Mail (RM) for 27 years, most recently as an operational support manager. RM provides ‘cloud’ (online) storage accounts to employees, which are protected by individual passwords that employees are not permitted to share.
The prohibition of password sharing is outlined in the RM code of conduct. That same code also prohibits the accessing, storing or publishing of pornographic material.
In October 2013 some files containing pornographic images were found on Mr Choksi’s cloud storage. Mr Choksi was then suspended and an investigation was undertaken by Mr O’Donovan.
During the investigation, Mr Choksi stated that he was aware of the rules in the code of conduct and admitted to sharing his password, but stated that the pornographic material was not his and that he did not know how it turned up in his cloud storage. He also stated that the sharing of passwords was common among employees.
Mr O’Donovan was provided with a report regarding Mr Choksi’s storage account, which concluded that ‘it was not possible to identify when the offending files had been placed there, by whom and who had accessed them’.
Mr O’Donovan concluded that despite the password being shared, Mr Choksi was still responsible for the pornographic material being on his cloud storage. In the dismissal letter, Mr O’Donovan stated that the password sharing would not on its own warrant dismissal, but the presence of the pornographic material provided justification for the termination of his employment.
Mr Choksi appealed, and the appeal officer conducted a re-hearing of the case. The appeal officer took a different view of the password sharing, stating that it on its own was enough to support dismissal. Mr Choksi then claimed unfair dismissal.
The original Employment Tribunal (ET) stated that there was an insufficient investigation into the presence of the pornographic material on Mr Choksi’s cloud storage, and as such it would not have been fair to dismiss him for that incident on its own. However, the ET held that it was reasonable for RM to dismiss him for the password sharing, and dismissed the claim accordingly.
Mr Choksi appealed to the Employment Appeal Tribunal (EAT). The EAT found that the ET too quickly accepted the reasonableness of the decision to dismiss for the password sharing alone, particularly when Mr O’Donovan had stated that that on its own that would not warrant dismissal. The EAT stated that the ET should have considered whether it was fair for an employer to substitute a more severe sanction on appeal, and sent the case back to the ET to consider that point further.
After reconsideration, the ET found that RM was not entitled to impose a higher sanction without telling the employee in advance that that was a possibility. In summary, because Mr O’Donovan found that the password sharing was not worthy of dismissal, the appeal officer deciding otherwise made the dismissal unfair.
Mr Choksi was awarded over £53,000 for unfair dismissal.
What does this mean?
There are a few lessons for employers from this case. The most basic point is that any explanation provided by an employee during a disciplinary process should be investigated fully by the employer, particularly if it might exonerate the employee.
In this case, RM could have looked further into whether other employees could be responsible, and whether password sharing was as widespread as stated by Mr Choksi.
In addition, caution should be exercised in the drafting of disciplinary outcome letters. RM may have avoided the expensive outcome of this case had Mr O’Donovan not referred to the password sharing not being worthy of dismissal. In a disciplinary situation involving two allegations, it may not be helpful to state that one is viewed as minor. It is often better to say nothing on that point, depending on the circumstances.
Finally, employers should be wary of imposing more severe sanctions on appeal. RM may have been successful had their policy, or the appeal hearing invite, mentioned that as a possibility. Employers may therefore wish to review their own policies (and practices) in light of what happened to RM in this case.
If you have any questions on any of the issues raised in the above article please contact Seanpaul McCahill.