No, held the EAT in Atkinson v Community Gateway Association, following the Court of Session's decision in McNeill v Aberdeen City Council. An employee who might be dismissed for gross misconduct can jump before he is pushed. However, the misconduct will be relevant to remedy.
The EAT confirmed that the employer had not breached the employee's ECHR article 8 right to respect for his private life and correspondence by reviewing personal emails of a sexual nature sent from work. The EAT's helpful analysis of the issues is at paragraphs 47 to 69.
The EAT also held that the employment tribunal was wrong to strike out a claim for detriment relating to a protected disclosure on the basis that the employer could not be vicariously liable for its employees' conduct in subjecting the Claimant to a detriment.
In light of the appeal findings, it was an error of law to strike out the claim without hearing all the evidence. That step should only be taken in rare cases.