Case Studies

Case Studies

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The ugly consequences of viewing a not so pretty picture at work

Published 28 July 2021

It should be quite simple, but trying to prove your innocence when wrongly facing disciplinary allegations at work can feel like a daunting battle.  

Like many people civil engineer Marvin was used to being sent jokey messages and videos by friends. 

His problem started when a former workmate copied him on an email sent to a colleague at the firm where Marvin had worked for five years. Two other workers were copied in on the email. 

The message included a picture of both a topless man and woman with a crude caption, which was intended to be funny. The joke was about the man. 

Marvin viewed the email. He did not reply to it or forward it to anyone else. 

About three weeks later Marvin was summoned to his manager’s office for a ‘quick chat’. A HR advisor was present. 

Marvin was asked about the message and he confirmed he had seen it. 

The HR advisor said there had been a formal complaint of sexual harassment from a female member of staff. The message had been forwarded to her by another employee. 

Marvin rightly insisted that it had nothing to do with him. He was told that in accordance with the acceptable internet policy he should have reported the email when he saw it  

Shocked Marvin was told his actions breached the policy. He was suspended from work pending an investigation. 

Marvin learned later his three male colleagues that received the same email had all been suspended. It emerged that one of them had forwarded the email to a female co-worker.  

She took offence and complained it was the latest in a long line of inappropriate behaviour by that member of staff. Following a disciplinary investigation he was dismissed.  

One of the other employees who received the email was also dismissed. While the other resigned and lodged a case for constructive dismissal. It is understood that claim later proved unsuccessful. 

The case against Marvin was delayed because he suffered ill health, and was signed off work for a lengthy period of time. 

Marvin feared when his case eventually went ahead his fate was likely to be the same as that of his colleagues. 

Desperate Marvin contacted the Castle Associates Employee Support Centre for help with his case. 

Marvin was adamant he had done nothing wrong. He simply wanted to clear his name and return to work because he loved his job. 

Our representative delved into the case and questioned Marvin about the workplace culture. It emerged during this that Marvin could recall being sent a similar message by his manager a while back. 

Our representative felt this was important. Prior to Marvin’s disciplinary hearing he requested that Marvin be allowed access to his work email to look for evidence that may support his case. 

At the time Marvin was allowed supervised access to his emails. He was able to find the email he had been sent by his manager - and the image was more explicit than the one in the current case. 

At the disciplinary hearing Marvin faced an allegation of breaching the acceptable internet usage policy. 

Our representative accepted the email Marvin was sent and the joke may upset some people. He argued the image was not illegal, it was sent to him from outside of the company, he did nothing with it and given the nature of the picture he was not duty bound to report it. 

The hearing was told that in simply looking at the message, Marvin cannot reasonably be considered to have breached the highlighted policy. It was also said that it contained no requirement for employees to report anything inappropriate as claimed when Marvin was suspended. 

The email sent by Marvin’s manager was shown to the hearing. It was said the manager, who should set an example, sent a more explicit image and no action was taken against him. 

Our representative strongly maintained that in the circumstances to issue any sanction against Marvin would be grossly unfair and unduly harsh. 

Marvin was later cleared of any wrongdoing. 

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For employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call. 

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