UK: Porn Rules at Work

Last Updated: 28 October 2003
Article by Andrea Nicholls

Originally published by The Times - 9 September 2003

Employers are finding that staff misuse of the internet is not always just cause for dismissal

Bosses are more likely to discipline staff for misuse of e-mail and the internet than for dishonesty, violence and health and safety breaches combined, recent studies show. Even so, many employers are not aware that, without adequate e-mail and internet policies, they may be breaking the law if they sack an employee for internet misuse — even for something as serious as accessing pornography.

This issue is highlighted by a recent tribunal case. A senior human resources officer, Mr Thomas, was dismissed by the London Borough of Hillingdon for accessing pornography on the net at work. Although the staff handbook stated that this amounted to misconduct, the employment tribunal held that it was not "gross" misconduct and so the dismissal was unfair.

The council appealed to the Employment Appeal Tribunal, which reversed the decision on the ground that dismissal for gross misconduct was within the "range of reasonable responses" and was therefore fair.

But, if the employee had been just a junior member of the accounts department, it is possible that the appeal tribunal would have held otherwise, and said that it was unfair of the employer to treat such behaviour as a sackable offence. Accessing porn may be frowned upon, but it may not be illegal.

What the case highlights is that employers must make clear to staff what is forbidden and what sanctions would result if an employee carried out the "prohibited act". And they must be consistent in their approach when disciplining staff over internet or e-mail misuse.

Late last year the British Library suspended nine employees for allegedly looking at pornography on the net. The irony is that the British Library holds what is believed to be the largest collection of printed pornography in the world. Had the employees been looking at the collection or Page 3, it would not be a dismissible offence.

Common sense should also prevail when defining "pornography" and other forms of internet or e-mail misuse. While accessing an illegal child pornography site would obviously be deemed gross misconduct, employers may risk legal action if they dismiss staff for what may be seen as a relatively trivial offence.

That was illustrated by the recent case of Bob Clark, a former national sales director of TXU Energi. He won his claim for unfair dismissal after being fired for sending a joke e-mail to colleagues that portrayed Arab women as ugly and hairy. Although Mr Clark was dismissed for breaking his company's strict policy banning dissemination of racist, sexist or offensive e-mails, the tribunal supported his assertion that he was not properly made aware of the company's e-mail policy. The tribunal also found that Mr Clark's colleagues had not been offended by the e-mail.

What about accidental access of pornographic sites and misuse of other employees' personal computers to access pornography? As more and more pornography sites use legitimate domain names, it becomes increasingly easy for net users accidentally to access one. Employers must be alive to the risk of an employee using a colleague's PC to break an internet/e-mail policy. There is also the question of consent. If employees have not consented to the monitoring of their e-mails and internet use, bosses could be in breach of the data protection laws. The Information Commissioner's guidelines go one step further by stating that employers should indicate when monitoring is taking place. Clearly that could make it harder to prevent staff abusing their IT systems.

But employers need to remember that any efforts to discipline staff could prove to be a waste of time and money if they do not first ensure that their e-mail policies are legally watertight.

The author is a partner and head of employment at the London law firm Howard Kennedy

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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