Porn at Work

Ralph had worked for his employers for 5 years He was part of the IT support at his employer, had a clean record and had even been employee of the year. However one day his world came crashing down when he was suspended and invited to an investigation meeting by his employer for:

‘’Inappropriate use of company property. In particular you have used the work laptop for none work purposes, namely watching pornography during work time.

Breach of the company IT policy. In particular, accessing and downloading pornographic material onto the work laptop.

The company alleges that the above allegations constitute gross misconduct.’’

So, what would be the correct approach by an employer in this scenario? Amongst the many weird and wonderful cases this is a scenario that I have found myself advising on. The employer in question was minded to set an example and dismiss Ralph when the disciplinary hearing eventually came.

However, in advising the employer I made it clear from the outset that they could not be seen to pre-judge the decision as this in itself could lead to a finding of unfair dismissal (particularly because the employee had over 2 years’ service). This is in spite of the fact that they believed only he had access to the laptop.

However, after a reasonable investigation and disciplinary (at which he was given the right to be accompanied) the employer was able to dismiss without notice and with no comeback.

Of course, this article reflects, in part, the situation with Neil Parish, the former farmer and conservative politician who, at the time of writing has announced his resignation as MP, triggering a by-election. Mr Parish has now admitted to watching pornography whilst ‘at work’ in the House of Commons chamber.

In my example the factors that were considered in determining that this would be a fair dismissal included:

• the fact the misconduct took place at work (electronic records could show the timing of the downloads)
• Ralph had signed and approved the Company IT policy which specifically referred to inappropriate use of the work laptop for such purposes
• the ‘electronic footprint’ showed that Ralph had deleted some other files which he later admitted to being inappropriate content (this inferred that he knew what he was doing was wrong)
• the fact that Ralph was in a senior internal IT position and should have known better. The employer had reached a point where they could not trust him and would not expect other employees to trust him either (the IT department regularly updated and repaired other work laptops)
• the company had a non-exhaustive list of what constitutes a gross misconduct as part of their disciplinary policies and this included the accessing and downloading of pornographic sites using company equipment

In this case the employer found themselves in a strong position and followed my advice in securing a decision which was fair and in the range of reasonable responses open to a reasonable employer.

The case could have (arguably) had a different outcome if the conduct took place out of work time, on a non-work device (if at work) and/or had no detrimental impact on the employee’s ability to carry out his role. The case could have also been less stable if Ralph could show he was mentally impaired because of a disability and/or was on medication for such mental illness e.g. side effects medication for depression.

Of course, the fact that the employer had very specific wording which they could refer back to (particularly the signed IT policy) meant that even without the ‘defences’ above they may still have found themselves making the same decision.

In a world where social media allows employees to have ‘no filter’, an employer needs to consider how best to protect its position as well as ensuring its property or trust is not abused.

If you need to have your IT or social media policies refreshed and renewed please get in touch with Kalpesh Nakeshree in the employment team on York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247 or email kalpesh.nakeshree@warekay.co.uk