Mr D Boucher v Essential Finance Group (UK) Limited — 2022

Mr Boucher, a protection adviser, was dismissed after the respondent found that he had sent a customer's name, company name and website address to his personal email account. The respondent treated this as a breach of its data protection policy and GDPR requirements and said it amounted to gross misconduct. The tribunal accepted that the reason for dismissal was conduct and that the dismissing and appeal officers genuinely believed he had committed misconduct on reasonable grounds.

The dismissal was held to be unfair because the respondent decided the case on a zero-tolerance approach that had not been shown to the claimant and did not appear in the written policies, which said serious breaches may amount to gross misconduct and would normally lead to dismissal. The tribunal also found that the claimant was only told at appeal stage that the recorded call with the customer was not fundamental to the outcome, so he was not given a fair chance to answer that basis for the decision. The respondent remained in breach of the order requiring disclosure of the call material, but the tribunal proceeded with the hearing.

The tribunal further held that, even if procedure had been fair, dismissal was outside the band of reasonable responses. It found this was an isolated incident involving limited information, that the customer had consented to the claimant contacting him, that no further data transfer was identified, and that the respondent had not treated the incident as serious enough to notify the ICO or the police. The claimant had a clean record, but the tribunal found he was still at fault because he knew the rule and should have exercised greater care. It therefore reduced both the basic and compensatory award by 20% for contributory conduct, with remedy to be determined at a later hearing.