High Court Orders Reinstatement Of Employee Dismissed In 2009 For Breach Of E-mail Policy

On 17 April 2015, the High Court ordered Bank of Ireland ("BOI") to reinstate a former employee, Mr. James Reilly, who was dismissed in 2009 for breach of the BOI email policy on the basis that the decision of BOI to dismiss was disproportionate and unreasonable. 1

The decision is important for employers as it highlights the risks of "making an example" out of an employee. It also gives clear guidance on the factors that employers should consider when putting an employee on paid suspension and is a worthwhile reminder of the costly consequences of an order of reinstatement under the Unfair Dismissal Acts 1997-2007 ("UD Acts"), where Mr. Reilly stands to receive back pay of 6 years.

Background

Mr. Reilly was a sales manager with BOI with 8 years' service and an exemplary work record. In 2009, it came to BOI's attention that inappropriate emails, described as pornographic, obscene or offensive, were being circulated internally and externally by its employees, including Mr. Reilly. Mr. Reilly was placed on paid suspension pending an investigation and subsequently dismissed for gross misconduct for breach of BOI's email policy.

The High Court decision dealt with an appeal from the decision of the Circuit Court to award Mr. Reilly compensation of 1 year's remuneration for his unfair dismissal (the maximum award being 2 year's remuneration under the UD Acts).

Making an example out of an employee

The High Court strongly criticised what it characterised as an attempt by BOI to "make an example" out of Mr. Reilly. Mr. Reilly gave evidence that the practice of circulating such emails was "widespread", that it was simply "banter" between colleagues and that senior employees (one of which was subsequently promoted within BOI) were also involved in circulating them. BOI had been aware that there was an existing problem with employees circulating inappropriate emails but, prior to Mr. Reilly's dismissal, no employees had been disciplined for such conduct. The High Court noted that if a zero tolerance policy was going to be adopted by BOI, it should have notified its employees by way of circular notices, team briefings etc. of the policy shift. This serves as a useful reminder to employers to communicate a change in its position.

Suspending an employee - When is it justified?

A significant part of the High Court's decision focused on what was held to be the unjustified suspension of Mr. Reilly. BOI investigated 5 employees in relation to the...