Porn Rules at Work
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...
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