Watson Esam | News | Unfair Dismissal for Watching Pornography

In a recent case before the Employment Appeal Tribunal (EAT) it was held that the dismissal of an employee for watching pornography on a school computer was unfair, but the employee’s dismissal did not amount to disability discrimination – (city of Edinburgh Council v Dickson).

Many of my clients are frustrated with the law and I accept that as outcomes are not always predictable, as an employment lawyer it is sometimes hard to give firm advice.  Following principles of good employment practice, knowing your legal obligations and taking specialist advice should protect your business against claims.  So what facts and principles led to the decision in this case?

• Mr Dickson had type 1 diabetes and hypoglycaemic episodes.
• In 2007 Mr Dickson, a community learning and development worker, based in a school was caught watching pornography
• Mr Dickson had no recollection of this.
• Mr Dickson’s manager did not accept that Mr Dickson’s actions could have been as a result of his disability (diabetes).
• Mr Dickson was dismissed for misconduct.
• It was held that the dismissal was unfair.

Employers need to undertake an objective examination of the facts of each case.  Consulting with the employee and obtaining independent medical advice is key.  In the Dickson case, the manager rejected Dickson’s explanation of his behaviour without obtaining medical evidence.  The EAT judge commented “a degree of scepticism on the part of ….the council ….. was entirely justifiable, but scepticism is one thing and a refusal to seriously consider the explanation proffered is another.”

For further information and advice about any of the issues discussed here, including performance management, dismissal or any employment or HR related matter contact Jay Bhayani at Watson Esam on 0114 275 3350 or email jay.bhayani@watson-esam.co.uk