Mark Higgins, Employment Law Partner
Mark Higgins, Employment Law Partner

Generally speaking, the legal test to establish the fairness of a conduct dismissal is that the employer must establish a reasonable belief in the employee’s guilt, having carried out an investigation proportionate to the means at its disposal and having offered the employee a fair hearing. This test works very well in many cases.

 

 

However, as the virtual world encroaches increasingly upon our working lives, it is possible that the standard test is no longer adequate to ensure that justice is done.

 

The problem stems from the fact that very few of us employers and employees alike are computer experts. We carry out hundreds of operations each day across entire networks with very little understanding of how the system works or is organised. When it comes to accusations of computer misuse, it is all to often a case of the blind leading the blind.

 

The case of Elaine Buckley serves as a reminder of this. True, justice appears to have been achieved in the end albeit with great cost to the claimant in terms of humiliation and psychological effects However, one cannot help but suspect that the claimant’s sex, age and personal circumstances have played a large part in all of this. Would the tribunal have reached the same conclusion had the claimant been a single male in his late teens or early 20s? Unless there were a major flaw in the employer’s investigation and evidence, the likely conclusion would surely have been that the employer was entitled to rely upon evidence from the computer logs that the user of the machine had committed the misconduct. This would have meant a fair dismissal.

 

Unless and until the test for fairness of conduct dismissals is adapted to take into account the complexities of modern working life, employees would be advised to resort to some basic safeguards. Most people wouldn’t walk away from their desks leaving their purse or wallet on show, yet few think to log out or at least ensure that their terminal is locked by a password. This failure is an open invitation for anyone in the vicinity to perform any number of illegal operations in your name. Unless they are caught in the act or there happens to be CCTV in the area, your fate is at the mercy of your employer.