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A classic mistake – how not to approach dismissals

23 March 2006

Dismissing staff is a horrible job at the best of times but it’s also a real danger zone for employers.

We often quote a tribunal case that hit the headlines a while ago because it’s a classic example on how not to approach dismissals.

A female designer was fired for using a company computer to send explicit e-mails to her female partner. She went to an industrial tribunal, who ruled in her favour and her former employer had to pay over £26,000 in compensation.

It emerged that the employer had monitored the woman’s emails and found that she had sent and received more than 300 personal messages in 15 weeks. On the basis of this, she was dismissed for ‘gross misconduct’.

Now we’d be the first to admit that, by most people’s standards, the woman’s conduct was inappropriate and unprofessional. But that misses the point. The clues here are why did the employer start monitoring her emails – and did they monitor everyone else’s emails too?

Very often an employer will, for whatever reason, want to get rid of a member of staff. The fact that he or she is, say, sending and receiving an enormous volume of personal e-mails may seem to present a conveniently valid reason for sacking that person.

The firm in this case had no email policy and they had given no prior warning that they were intending to monitor. So as far as the employee was concerned, she was doing nothing wrong. Similar patterns crop up in countless tribunal cases – employers who have effectively fished around for a reason to dismiss someone they want to be rid of. If the tribunal sees it that way, quite simply, the employer will lose.

The nub of the argument is that the woman had been given no prior warning that her behaviour warranted criticism, and undoubtedly if she had been she would have stopped.

If you want to avoid problems like this one, establish crystal clear policies on issues such as emails. As long as you establish what is right and what is wrong, if people break the rules, any disciplinary action is likely to be deemed fair.

As always, if you need commercial and pragmatic legal advice, we’re here to help so please get in touch.

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Jenny Hawrot LLB (Hons)
Senior associate, solicitor
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Jenny Hawrot
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