Racist email sent outside of work to personal address justified dismissal
09 February 2011
In Gosden v Lifeline Project Ltd ET/2802731/09 the ET has held that an employee who forwarded a racist email to a colleague from his personal computer to that employee`s personal computer was guilty of gross misconduct, entitling the employer to dismiss him when the email was forwarded on to other colleagues work email addresses.
Mr Gosden was employed by Lifeline Project Ltd, a charity that helps to rehabilitate drug users, at Lindholme Prison. Lifeline provides services within the prison community and works closely with the Prison Service.
Mr Gosden forwarded an email from his personal home computer which was titled "The British are way ahead of us" to one of his colleagues, Mr Yates, who had previously worked with him at a different Prison, Moorland. The email was sent to Mr Yates` personal computer.
The email read "Apparently, it is a sin for an Islamic male to see any woman other than his wife naked and that he must commit suicide if he does. So next Sunday at 4.00pm, all British women are asked to walk out of their house completely naked to help weed out neighbourhood terrorists."
It also contained nude pictures of women and informed the reader it was their duty to pass it on. Mr Yates forwarded the email to another Prison Service employee`s work email address and Lindholme`s management became aware of it. Mr Gosden was informed that his behaviour in forwarding the email was inappropriate and reminded him of the Prison Services Equal Opps and Internet Usage policies.
Disciplinary action was eventually instigated against him. Mr Gosden admitted that he had sent the "joke" or "spam" email to Mr Yates. However, he said that he was not responsible for Mr Yates forwarding it to his colleagues work email address and argued that he could not be held responsible for what Mr Yates had done with it. Mr Gosden was suspended and the Prison Service informed Lifeline that they would not allow him back to work at any of their sites.
After a disciplinary meeting, Mr Gosden was dismissed. The reason given was that Lifeline felt that Mr Gosden`s actions made further assignments for him within the prison community impossible. They found that by sending the email, he had committed an act of gross misconduct which had brought Lifeline`s reputation into disrepute. In the alternative, Lifeline found that the Prison Service`s refusal to have Mr Gosden back was a further ground for dismissal (on grounds of SOSR).
Mr Yates, who had offered to resign twice over the affair was instead given early retirement.
The Employment Tribunal held that the reason for Mr Gosden`s dismissal was misconduct and not third-party pressure to dismiss. They then considered whether the dismissal was fair in the circumstances.
Mr Gosden argued that the email that he had sent was a private matter and therefore his dismissal was unfair. The Tribunal disagreed. The email clearly stated that it should be passed on and so he should reasonably have expected it to have been forwarded. The ET concluded that a reasonable employer would be entitled to conclude that Mr Gosden had committed an act of gross misconduct that could damage the company`s reputation or integrity. The decision to dismiss was therefore within the band of reasonable responses.
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