Henderson v London Borough of Hackney

Gross misconduct is not confined to conduct expressly prohibited by a workplace rule. A non-exhaustive disciplinary code may encompass conduct whose seriousness arises from the employment context, including work involving vulnerable children and a relationship of trust. In an unfair-dismissal case, the tribunal must apply the statutory reasonableness test and give structured consideration to proportionality where Article 10 rights are relied on. An employee’s attitude and refusal to recognise an error of judgment may be relevant where trust and confidence are central. An appellate court will not remit for a misdirection on wrongful dismissal if the tribunal’s conclusion is plainly and unarguably right on its own findings. Dismissal for viewing, receiving and forwarding sexually explicit material on a school computer during working hours was proportionate.

The appellant, an inclusion manager at Haggerston School, was summarily dismissed after sending and viewing sexually explicit images and videos on school computers during school hours. The employment tribunal dismissed claims of unfair and wrongful dismissal, finding gross misconduct. The Employment Appeal Tribunal dismissed her appeal. She appealed on the grounds that there was no specific internet policy, that the conduct did not fall within the disciplinary definition of gross misconduct, that the tribunal had applied the wrong test to wrongful dismissal, and that dismissal was disproportionate under Article 10. The central issues concerned the effect of workplace context, the consequence of the tribunal’s misdirection, and the proportionality of the sanction.

The Court of Appeal refused permission to appeal. Pill LJ gave the principal reasons, with which Moore-Bick LJ and Gross LJ agreed.

1. Gross misconduct. The disciplinary definition covered misconduct so serious that the employer was no longer prepared to tolerate the employee’s continued presence at work. The examples were expressly non-exhaustive. The absence of a specific policy or express warning that the conduct constituted gross misconduct did not prevent that finding. Dietmann v Brent LBC [1988] ICR 842 was distinguishable because the facts and employment context were materially different. In this case, the vulnerability of the pupils, the safeguarding context and the need for trust and confidence in a senior employee supported the conclusion that viewing, receiving and forwarding pornographic material at school during working hours was gross misconduct.
2. Wrongful dismissal. The tribunal had applied a reasonable-responses test rather than the appropriate factual inquiry. Under Dobie v Burns International Security Services [1984] ICR 812, as applied in Tilson v Alstom Transport [2010] EWCA Civ 1308, remission is ordinarily required where the wrong legal test has been applied, unless the decision is plainly and unarguably right despite the misdirection. The tribunal’s own findings made a different conclusion impossible, so the EAT was entitled to uphold its decision.
3. Unfair dismissal and Article 10. Under section 98(4) of the Employment Rights Act 1996, the employer had to establish a reasonable inquiry, an honest belief based on that inquiry, and a dismissal within the reasonable range of responses. Where Article 10 is relied on, proportionality must be considered in a structured way. The court made no express finding on whether Article 10 was engaged, but held that the tribunal had considered the issue. The restriction was limited to the use of a work computer at school, and Article 10(2)’s reference to protecting health or morals supported the conclusion that dismissal was proportionate. The panel was entitled to consider the appellant’s attitude and refusal to acknowledge an error of judgment, particularly because trust and confidence were central.
4. Disposition. The tribunal’s conclusion that the unfair-dismissal complaint failed was justified. Any further appeal had no real prospect of success. The application was refused.

• Court of Appeal (Civil Division) — refused permission to appeal and ordered that the application be refused in [2011] EWCA Civ 1518.
• Employment Appeal Tribunal — dismissed the appellant’s appeal from the employment tribunal’s judgment of 6 December 2008.
• Employment Tribunal — dismissed the complaints of unfair dismissal and wrongful dismissal and held that summary dismissal was justified.