Governor and Company of Bank of Ireland v James Reilly

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 17 April 2015
• Neutral Citation: [2015] IEHC 241
• Court: High Court
• Date: 17 April 2015

Bank of Ireland v Reilly

BETWEEN

THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND

PLAINTIFF

AND

JAMES REILLY

DEFENDANT

[2015] IEHC 241

[No. 34 CA/2014]

THE HIGH COURT

Employment – Unfair Dismissals Act 1977 – Breach of email policy – Re-instatement

Facts: The defendant appealed against the order of the Circuit Court alleging unfair dismissal by the plaintiff. The defendant was suspended without notice and eventually dismissed for breach of the email policy relating to circulation of inappropriate emails.

Mr. Justice Noonan held that the appeal against the order of the Circuit Court relating to alleged unfair dismissal by the plaintiff would be granted. The Court held that the plaintiff failed to establish substantial grounds for dismissal in the instant case. The Court found the suspensions of the defendant to be merely a regressive act of the plaintiff advocating the policy of zero tolerance in matter of widespread activities in the company. The Court found that none of the alleged emails had originated with the defendant. The Court held that the plaintiff's act was entirely disproportionate. The plaintiff by way of predetermination and manipulation of the entire process had committed an on the defendant. The Court held that the award of compensation was not an adequate redress and therefore directed re-instatement of the defendant.

Introduction

1 1. In these proceedings, the defendant ( "Mr. Reilly") alleges that he was unfairly dismissed by the plaintiff ("the bank") from his employment and has brought a claim pursuant to the Unfair Dismissals Act 1977 (as amended) ( "the Act"). The claim originally came before the Employment Appeals Tribunal ( "the EAT"), where it was seven days at hearing over a period of about a year. An appeal was brought from the decision of the EAT to the Circuit Court, which took eight days and in turn, the order of the Circuit Court was appealed to this court when the matter was at hearing for ten days. This is without taking account of an initial investigation, a two stage disciplinary process and two internal appeals.

2 2. By my reckoning, Mr. Reilly has given oral evidence on some eight occasions over a six year period in relation to this matter. Enormous costs have been incurred that Mr. Reilly at least can ill afford. This must be viewed as oppressive to say the least and calls into question the State's obligations under Article 6 of the European Convention on Human Rights regarding the right to a fair and expeditious trial. Not for the first time has this court been critical of this unacceptable situation - see the remarks of Charleton J. in JVC Europe Limited v Panisi [2011] IEHC 299. Although as a matter of law an appeal lies from the Circuit Court to the High Court under the Act of 1977, a general reading of the Act appears to suggest an underlying assumption that the Circuit Court should be the final tribunal of appeal. It appears to me that it is well past time that this issue was addressed.

Background Facts

3 3. Mr. Reilly, who is now 33 years of age, is from Blanchardstown, County Dublin. After leaving school, he commenced employment with the bank on the 23 ^rd of April, 2001 as an entry grade bank official. He rose through the ranks quickly. Within a year, he had won a customer service award for the north Dublin region. By 2004, he was promoted to senior bank official at the age of 22, which was a significant achievement. His ability, particularly in the field of consumer lending, was recognised outside the bank. He was approached by Ulster Bank in 2005 offering the position of sales manager and Halifax offered him the position of branch manager. In 2006, he was placed in an acting sales manager role which was formalised in September, 2007, when he was appointed as a sales manager at the age of 25. This would be equivalent in rank to what would formerly have been described as an assistant branch manager. Mr Reilly's achievement in this regard was extremely unusual if not unique.

4 4. Most of the facts in this case are not in dispute but in particular, the fact that Mr. Reilly was an excellent employee with an exemplary record who was diligent and hard working.

5 5. From in or around 2002, Mr. Reilly had his own email address at the bank. His use of that address was subject to the bank's code of conduct and other policy documents to which I shall refer further.

6 6. In early February, 2009, a chain email captioned "Hangover Brilliance" was forwarded to an individual in the bank who forwarded it in turn to four members of staff in the bank including Mr. Reilly. One of those staff members sent the email on to persons both inside and outside the bank and it ultimately made its way into the ESB group email system, where it was detected by an IT security manager.

7 7. On the 5 ^th of February, 2009, the ESB security manager alerted the bank's head of IT security, Mr. Brian Leahy, of an email abuse in the following terms:

"Brian,"

I note from the email below that two Bank of Ireland people were involved in forwarding this around the town. We are tackling the ESB names."

8 8. As a result of this communication, Mr. Leahy immediately contacted the bank's Group Industrial Relations Department ( "GIR") and spoke to Mr. Brian Kelly of that department. In fact, Mr. Kelly was employed within a subset of GIR, namely the Employment Advisory Service ( "EAS"). On receiving this information, Mr. Kelly instructed Mr. Leahy to "lift" the mail boxes of the two bank employees who had forwarded the hangover brilliance email. This did not include Mr. Reilly.

9 9. Lifting a mail box is a term for making a forensic copy of the entirety of the mailbox in question so that the content is of that moment "fingerprinted" and frozen in time. It cannot thereafter be interfered with. The process can be, and was in fact, undertaken without the knowledge of the mailbox user. Recognising that this is a significant invasion of the privacy of the individual concerned and something not to be undertaken lightly, lifting a mailbox cannot take place until it is expressly authorised in writing by three different individuals. A form must be completed which is known as an SDAR and for the authorisation to be complete, the form must be signed by a member of bank IT security, a member of GIR and also a member of HP security, Hewlett Packard being the custodians of the bank's email system.

10 10. When the two mailboxes in question were lifted, a colleague of Mr. Kelly's in EAS, Ms. Margaret Keogh, since deceased, went to view these two mailboxes at the bank's IT headquarters in Cabinteely, County Dublin. Arising out of Ms. Keogh's viewing of the two mailboxes, Mr. Kelly then requested that a further three mailboxes be lifted, one of which was that of Mr. Reilly.

11 11. The SDAR in respect of the latter three mailboxes was signed off on the 17 ^th February, 2009 and on the same date, the mailboxes were lifted and viewed by Ms. Keogh. When she did so, Ms. Keogh discovered a number of inappropriate emails with attached images in Mr. Reilly's mailbox. Ms. Keogh took what he felt was a representative sample of six of these emails.

12 12. Evidently, Ms. Keogh had some discussion about these emails with her immediate superior, Mr. Graham Fagan and he or she in turn with Mr. Gerry Mitchell, the head of GIR, as later the same day, or possibly early the next day, the 18 ^th of February, 2009, Mr. Mitchell telephoned Mr. Cyril Macken, who was at that time the head of the bank's 21 North Dublin branches, which included Blanchardstown. Following that contact, Mr. Macken telephoned Mr. David Donnelly, the Blanchardstown branch manager, and instructed him to put Mr. Reilly on special paid leave with immediate effect. Later that afternoon, Mr. Reilly was summoned by Mr. Donnelly to his office where Ms. Breda Byrne, the customer service manager was also present.

13 13. Mr. Donnelly told Mr. Reilly that on the instructions of Head Office, he was obliged to suspend him with immediate effect and asked him to hand over his keys of the branch. He said that an issue had arisen in relation to emails but he didn't know anything about it.

14 14. The next day, the 19 ^th of February, 2009, Mr. Reilly contacted his union, the Irish Bank Officials Association ( "IBOA") and was put in touch with Mr. Ciaran Mahon for advice and representation. Mr. Mahon was also a Bank of Ireland employee and part-time union official.

15 15. At the same time, Mr. Macken appointed another bank official, Mr. Paddy Lonergan, to investigate the matter on his behalf.

16 16. When the mailboxes referred to were lifted, in addition to Mr. Reilly's mailbox, the mailboxes of four other members of staff at Blanchardstown were also found to contain inappropriate material. Of those five members of staff, three, including Mr. Reilly, were suspended. Mr. Lonergan was charged by Mr. Macken with investigating all five cases.

17 17. On the 27 ^th of February, 2009, Mr. Mahon met with Mr. Kelly to discuss Mr. Reilly's case and that of another bank employee's that he was representing. Mr. Kelly showed Mr. Mahon the offending email images and told him that the bank was viewing the matter as serious as this was a rising trend. Also, on the 27 ^th of February, 2009, Mr. Kelly wrote to Mr. Reilly to advise him that the investigation meeting with Mr. Lonergan would take place on the 12 ^th of February, 2009. Mr. Lonergan began his investigation and appears to have been assisted throughout, where necessary, by Mr. Kelly.

18 18. The investigation meeting with Mr. Lonergan took place on the 12 ^th of March, 2009. Present were Mr. Reilly, Mr. Lonergan, Mr. Mahon, and Mr. Kelly. In the course of the meeting, Mr. Lonergan put the relevant images to Mr. Reilly for his comments. Mr. Reilly did not deny sending them although...