Andrew Brown: Punishment must address degree of internet 'misuse'

Published on Sunday 8 November 2009 20:55

EMPLOYEES at Swindon's Great Western hospital who were suspended after an apparently harmless and victimless prank have been reinstated, in a case that demonstrates the ongoing relevance of the role of the internet to employment law.

The incident involved seven employees, including doctors and nurses, on night shift one weekend in August.

It is understood that employees photographed each other lying down in unusual places around the hospital, including the hospital's helipad.

The pictures were then placed on social networking website Facebook as part of an internet "lying down game" in which participants are given extra points for being pictured in unusual places.

At the time, Great Western Hospitals Trust said that the incident had not involved patients and that patient care had not been compromised.

Nonetheless, the staff were suspended while a disciplinary investigation took place. It is understood that this required locum staff to be hired to provide cover for the suspended employees.

As the employees were on full pay while suspended, the suspension was at a significant cost to the public purse and, at a time of calls for control over public spending, resulted in some criticism of the hospital's decision.

All seven employees are now believed to be back at work following the disciplinary hearings and no employee was dismissed.

A spokeswoman commented: "We're glad the staff are back doing what they do best. They need to understand unprofessional behaviour is unacceptable."

However, the saga leaves several questions unanswered, including whether suspension was an appropriate response to the prank or whether expending public funds for this purpose was justifiable.

It also prompts the question to what extent can employees be disciplined for what their employer finds out about them via the internet?

Suspension does not appear to have been appropriate in this case.

The ACAS (Advisory, Conciliation and Arbitration Service) code of practice on disciplinary matters is taken into account by tribunals in determining whether an employer's actions were fair and reasonable when suspending their employees.

An unreasonable failure to follow the code can result in a finding against an the employer and an increase in any compensation due by them by up to one quarter.

The ACAS code states that "where a period of suspension is considered necessary, this period should be as brief as possible (and] should be kept under review".

While the specific circumstances behind the decision to suspend the medical staff are not known in this case, on the face of it it does not seem to be a scenario in which one would expect the suspension of all employees involved.

The decision to suspend them throughout the entire period of the investigation is also questionable.

During the investigation, the NHS Trust had no choice but to continue to pay the suspended employees, as suspension without pay would have amounted to a disciplinary sanction being applied before any decision on guilt had been reached.

Consequently, the Trust might have been advised to take into account its obligations to pay the suspended staff, while at the same time incurring the additional cost of temporary replacements during the period of suspension, before arriving at the decision to suspend.

Under these circumstances, it would appear that the Trust may have overreacted in suspending the staff.

This, as a direct consequence, led to public funds being expended which could have been put to better use.

Despite its frivolities, the case serves as a useful reminder to employees of the dangers of uploading pictures or information about themselves that includes conduct that some would consider inappropriate.

Increasingly, employers who have become aware of such postings, either due to their own internet monitoring or thanks to "tip offs" or complaints by others, take the view the behaviour portrayed has brought the employer and/or the employee into disrepute.

Depending upon the nature of the conduct, dismissal may in some circumstances be justifiable.

&#149 Andrew Brown is a senior solicitor in the employment unit of Anderson Strathern LLP.