The High Court ordered Bank of Ireland to reinstate James Reilly after finding that his dismissal for sending inappropriate emails was unfair and that the bank had failed to show substantial grounds for it.
Mr Justice Noonan’s judgment, delivered on 17 April 2015, found that the bank’s response was disproportionate and outside the range of reasonable responses available to a reasonable employer. The court ordered reinstatement as the appropriate remedy under the Unfair Dismissals Act 1977. It did not find that Mr Reilly’s conduct was acceptable: the judge said he appeared to accept that sending the emails was misconduct deserving of some sanction.
The emails came to light after an external security manager alerted the bank to a chain email that had circulated through the ESB email system. The bank later examined Mr Reilly’s mailbox and identified 29 emails it considered inappropriate among 1,139 documents in his sent or outbox over a two-year period. The judge noted that, apart from one email he accidentally sent to his bank address and forwarded only to himself, none originated with Mr Reilly.
The bank suspended Mr Reilly in February 2009, investigated the matter and dismissed him in May that year. The judge found that the bank had not shown why suspension was needed to support the investigation. Mr Reilly was given little explanation when suspended, and the judge concluded that the evidence pointed to a decision within the bank to make an example of him.
In reaching his decision, the judge considered the bank’s email policy, the limited evidence of actual harm to the bank, and the circumstances in which the emails were circulated. He accepted Mr Reilly’s evidence that such material circulated widely and that the bank had not taken significant steps to address the practice or clearly warn staff of a shift to zero tolerance. The judgment also noted evidence that another bank official had forwarded an email later considered the most serious, but the bank appeared not to have investigated that official, who was subsequently promoted.
The court considered the effect of dismissal on Mr Reilly, including his poor prospects of re-employment during the economic crisis and difficulty meeting mortgage repayments. The judge rejected the bank’s argument that Mr Reilly’s conduct should rule out reinstatement. He concluded that compensation would not provide adequate redress and ordered that he be reinstated.