Mr D Bosher v EUI Ltd — 2019

Mr Bosher worked for EUI Ltd from 13 June 2011 until his dismissal on 22 August 2017, after police searched his home on 30 March 2017, seized devices, and later charged him on 12 July 2017 with possession of two Category A images. The tribunal recorded a series of investigation meetings in which the claimant's position developed as further evidence and legal advice emerged. He remained at work, was not suspended, and had an otherwise clean disciplinary record.

The tribunal found that the principal reason for dismissal was conduct, including a belief that the claimant was in possession of the two Category A images, concerns about reckless private viewing of pornography, reputational harm, and suitability for the role. However, it held that the dismissal was unfair under s.98 ERA 1996 because the investigation was not reasonable in the circumstances, the disciplinary charge was not framed clearly enough, and wider allegations about reckless behaviour, reputation, and fitness for role were not properly set out in writing before the hearing. It also found that a reasonable employer would have waited for the outstanding CPS enquiries and further legal advice before deciding to dismiss.

The appeal was also held to be unfair. The tribunal considered that a reasonable employer would have postponed the appeal pending developments in the criminal proceedings, particularly because the claimant was not being paid and there was no real disadvantage to keeping the appeal open. The tribunal said the appeal did not cure the earlier unfairness.

On remedy-related issues, the tribunal found that the claimant's conduct in viewing and collating legal pornography was blameworthy enough to justify a 25% reduction to both the basic and compensatory awards, and it said a 10% increase was appropriate for the Acas Code breach. It did not determine a final monetary award in this judgment and instead listed the matter for a later remedy hearing. On the wrongful dismissal claim, the tribunal was not satisfied on the balance of probabilities that the claimant was in possession of the two unlawful Category A images, and it held that his private conduct did not amount to gross misconduct or a repudiatory breach. It also found that the respondent acted in breach of contract by treating him as a bad leaver in relation to his shares.