Commentary from Daniel Barnett

14 January 2003

Aggravated Damages: New EAT Decision

Some new EAT decisions, posted on the EAT website in the last week.

London Borough of Hillingdon v Thomas (Ms Recorder Slade, 26/9/02)

Hillingdon dismissed a senior personnel officer who had been caught accessing pornography on the internet at work. The staff handbook provided that this amounted to misconduct. The employment tribunal held that whilst it may be misconduct, it was not gross misconduct and so the dismissal was unfair. The EAT held this finding was perverse, and substituted a finding that it was within the range of reasonable responses for Hillingdon to dismiss a staff member for accessing pornography. This authority is going to be very helpful for all employers who dismiss for similar offences, although it must still be borne in mind that the employee must have been told that accessing pornography is prohibited.

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Cape Industrial Services v Ambler (HHJ Peter Clark, 20/12/02)

This case contains a plethora of appeal points: most uninteresting. Two interesting points shine through.

First, at paragraph 47, the EAT says that an employer who complies with a contractual grievance procedure will not be in breach of the term of trust and confidence if the employee has requested departure from that procedure (but the employer insists on sticking to the contractual procedure). It is not clear whether the EAT intended this statement to apply in all cases, and some caution should be exercised in following it rigorously.

Second, at paragraphs 51-52, the EAT restates that in a constructive dismissal case, the employer is not required to justify its conduct (i.e. the constructive dismissal) under ERA 1996, s98(1), but merely to show the reason for the constructive dismissal.

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Daniel Barnett

Daniel Barnett is a barrister at 2 Gray's Inn Square Chambers

www.danielbarnett.co.uk