A Royal Mail employee who was allegedly found storing “obscene material” on his online work account has been awarded £53,142 for unfair dismissal.
Mr P Chokski, an operational support manager, was dismissed for gross misconduct on 18 March 2014 for both the alleged content and for sharing the password to his account. An internal appeal then ruled the misuse of password alone was justification enough for his dismissal.
However, after being asked to reconsider the case, the London Central ET ruled the internal appeals process wrongly allowed for a harsher penalty to be imposed, and as such the dismissal for password sharing was unfair.
On 10 October 2013, 28 files containing pornographic material were found on the cloud storage provided to employees. The police were informed and Chokski, a Royal Mail employee of 27 years, was arrested, interviewed, charged, and bailed. It was widely known among the workforce this had happened.
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Access to individual cloud accounts was protected by a personal password and use of the company’s computer system was governed by a code of conduct which forbade the sharing of personal passwords as well as and obtaining access to, storing or publishing pornographic material.
Chokski accepted he was aware of those rules but stressed he did not know about the files until he was arrested. He said the files were not his, and that there was a widespread practice of password sharing among employees, which was essential to facilitate efficient working.
Mr O'Donovan, who was head of engineering at the department where Chokski worked, but not his line manager (who was on annual leave), investigated the incident.
He suspended Chokski on 25 October 2013 and interviewed him on 18 December. Chokski maintained he was not aware either that the images were on his cloud or how they might have found their way there.
As part of the investigation, O'Donovan was provided with a technical report containing detailed information about each file. It concluded, however, that “it was not possible to identify when the offending files had been placed there, by whom and who had accessed them.”
O’Donovan pursued the investigation of Chokski, as the files had been put into an account protected with a password applicable to and known by Chokski. O’Donovan decided that although Chokski had shared his password (he had admitted as much), he was still the one responsible for downloading pornographic material into his cloud account.
In his dismissal letter, O’Donovan said he considered that password sharing was a serious offence, but would not on its own justify dismissal. However, the combination of the material with the password sharing led to the dismissal.
The tribunal heard Chokski internally appealed the decision and an independent appeals officer, Mr Miranda, conducted a re-hearing. Miranda’s view was that if he had found that Chokski had shared his password, that would justify dismissal. He said on his assessment there had never been a practice of sharing login details at the company.
An initial ET in 2014 found that since “there was not an appropriate or sufficient investigation into the issue of how the files came to be in [Chokski’s] cloud account”, a dismissal on these grounds would have been automatically unfair. However, Employment Judge Professor Neal ruled that the dismissal for misconduct on the basis of password sharing “fell within the band of reasonable responses in respect to that particular offence.” He held Chokski had therefore not been unfairly dismissed.
Chokski appealed that decision. Subsequently, the Employment Appeals Tribunal found as O’Donovan had decided that the password allegation on its own would not have justified dismissal, the original tribunal erred when it failed to discuss whether dismissal on the basis of password sharing was in fact reasonable.
The judge said: “[This issue] ought to have been considered first of all in terms of the band of reasonable responses, and secondly as to whether or not if on appeal, a dismissing officer takes a different and more extreme view, then one can say that the dismissal that occurred earlier therefore is a fair dismissal. In my judgment, that is a concept that requires a good deal more thought than was given to it by this Employment Tribunal.”
The case was remitted back to the London Central Employment Tribunal. After reconsideration it held the internal appeal process “wrongly allowed for a different and graver sanction to be imposed without notice to the claimant that he was at risk of a more severe sanction.”
Employment Judge Elliott ruled Chokski “found himself worse off because Miranda took a different and more stringent approach to password sharing.” Because O’Donovan would not have been dismissed for that reason alone, the dismissal for password sharing was unfair.
The Royal Mail Group has been ordered to pay £53,142 for unfair dismissal and Chokski’s £9,360 costs.
Croner associate director Paul Holcroft said the case highlighted the important procedural point that an appeal decision cannot be used to increase the disciplinary penalty previously imposed on the employee.
“Doing so would discourage an employee from seeking to exercise their right to appeal a decision that they think is incorrect or too harsh,” he said.
The non-statutory ACAS guide states: “An appeal must never be used as an opportunity to punish the employee for appealing the original decision, and it should not result in any increase in penalty as this may deter individuals from appealing”.
Royal Mail Group has been contacted for comment.