An Employment Tribunal in the case of Gosden v Lifeline Project Limited (“LPL”) has held that a dismissal on the grounds of gross misconduct where the employee sent an e-mail containing racist comments and images containing nudity from his personal e-mail address to a friend’s personal e-mail address was fair in circumstances where the e-mail subsequently came to light and called the employer’s reputation and integrity into question.

Mr Gosden worked as Prison Drug Worker for LPL, a charity which provides services to the Prison Service. One weekend Mr Gosden forwarded an e-mail which he himself had recently received to Mr Yates, an employee of the Prison Service. The e-mail, which was headed “It is your duty to pass this on,” contained images of naked women and included offensive and racist comments asking British people to help remove Muslim terrorists from their communities. This e-mail was sent from Mr Gosden’s personal e-mail address to Mr Yates’ personal e-mail address. Mr Yates subsequently forwarded this e-mail to a colleague and therefore the e-mail entered the Prison Service’s e-mail system where it was detected.

On discovering the e-mail, the Prison Service advised LPL that it was concerned that Mr Gosden had forwarded a racist and offensive e-mail to one of its employees and it made the decision to exclude Mr Gosden from all of its prisons in Yorkshire and Humberside.

LPL subsequently dismissed Mr Gosden on the grounds that he had breached the company’s equal opportunities policy and had damaged the company’s reputation and its relationship with the Prison Service.

Mr Gosden brought claims of unfair and wrongful dismissal in the Employment Tribunal.

Although finding that the Human Rights Act 1998 and therefore any right to privacy did not apply in this case as LPL was not a public authority, the Employment Tribunal acknowledged that the e-mail in question had been sent in Mr Gosden’s own time from his personal e-mail address to Mr Yates’ personal e-mail address and so specifically considered whether it could be fair for an employer to dismiss an employee for such conduct which took place outside of the workplace. It held that had the e-mail in question been a piece of private correspondence intended only for the eyes of Mr Yates it may well have attracted privacy. However, the e-mail was a chain e-mail which was clearly intended to be forwarded onto others. Therefore, the Tribunal held that it could not be regarded as confidential.

The Tribunal further found that a reasonable employer was entitled to regard Mr Gosden’s act of sending an offensive e-mail to an employee of one of its biggest clients as something likely to damage its reputation and integrity. It also found that the Prison Service’s decision to exclude Mr Gosden from its prisons was evidence that such damage had indeed occurred. The Tribunal recognised that the damage to LPL’s reputation only occurred as a result of Mr Yates’ decision to forward the e-mail into the Prison Service’s e-mail system but concluded that Mr Yates would not have been in position to do this had Mr Gosden not forwarded the e-mail to him in the first place. The Tribunal therefore concluded that the dismissal fell within the band of reasonable responses and was fair. On the basis that the Tribunal was satisfied that Mr Gosden had committed gross misconduct his claim for wrongful dismissal also failed.

In this case the Tribunal was keen to draw a distinction between a chain e-mail which is intended to be forwarded to others and private correspondence which it held may still have privacy attached in these circumstances. Furthermore, employers should note that the finding of a fair dismissal in this case was dependent on the employer’s reputation having been brought into disrepute. It does not follow that a charge of gross misconduct brought solely on the basis that the employee had breached the spirit of equal opportunities policies in his own time away from work would have been deemed to be fair and employers in such cases should always address the question of whether the conduct is such that is likely to impact on their workplace.