Mr T Ellis v ES Field Delivery (UK) Ltd — 2020

Mr T Ellis was employed by ES Field Delivery (UK) Ltd from 1 October 2012 until his dismissal on 5 September 2018. He worked as a technical remote specialist at the Atomic Weapons Establishment and was subject to the respondent’s internet and disciplinary policies, which prohibited downloading software and other non-business material and identified inappropriate or excessive internet use, together with downloading, forwarding or saving inappropriate material, as potential gross misconduct. The claimant accepted he knew the policies and had been trained on them.

The tribunal found that the claimant’s laptop was audited after his line manager became concerned about his use of the laptop during work time. The investigation found multiple downloads of films, games, online gambling and a crack file used to enable unlawful software use. At the investigatory and disciplinary meetings the claimant accepted that he had downloaded some material, accepted that it was not appropriate, and accepted that it constituted a security breach. He said some downloads occurred while he was off on long-term sick leave and he could not explain the crack file. He also raised that he suffered from depression and that his mental health was a mitigating factor.

The respondent convened a disciplinary hearing, provided the claimant with the investigation material, and ultimately dismissed him for gross misconduct. On appeal, the claimant repeated that his mental health had not been properly taken into account, that personal use of IT systems was common at work, and that he had not been given reasonable adjustments on his return to work. The tribunal accepted the respondent’s evidence that it had considered the allegations, the policy, and the claimant’s explanations, and that it had also made a later check of a random sample of other employees’ laptops, which did not reveal similar inappropriate content. The claimant did not identify specific comparators who had engaged in the same misconduct.

Applying section 98 ERA 1996, section 98(4), and the Burchell approach, the tribunal held that the reason for dismissal was conduct, that there had been a reasonable investigation, and that the respondent had acted fairly in treating that reason as sufficient to justify dismissal. It found that the respondent’s policy clearly permitted summary dismissal for this type of misconduct, that the claimant was an IT specialist working in a high-security environment, and that dismissal fell within the band of reasonable responses. The unfair dismissal claim was therefore dismissed.