Porn in the workplace – Part 1
According to Google, over 11 million searches a month are made using the word “porn”. Add in associated words like “porno”, “sex” and “free porn” and the figure rises to over 28 million. Further, in a survey conducted in 2015, 9% of UK workers admitted accessing pornography at work – and if that number admitted it, the true figure is probably very much higher.
Given these statistics it is hardly surprising that many employers have had to deal with issues relating to employees accessing online pornography in the workplace. There are a number of different legal issues which can arise from this type of behaviour. The first, and most obvious, is what action to take against the offending employee. The other main issue is the risk of sexual harassment claims being brought by other employees who have seen and are offended by the pornographic material.
Many employers take the view that employees caught viewing or emailing pornography at work, or using work equipment to do so, commit gross misconduct. However, the Courts and Tribunals do not necessarily agree. If the employee who has been dismissed brings a claim for unfair dismissal, the Tribunal will, as with any other misconduct case, look at whether the employer believed they had a reason to dismiss, whether they had carried out a reasonable investigation, and whether the decision to dismiss was within the band of reasonable responses which an employer might reach. So, in these types of cases, what factors are the tribunal likely to consider?
The first consideration may be where the employee works. If they work in an environment where children or vulnerable people might have access to the computer or otherwise be able to view the pornography, the employee is likely to be expected to adhere to a higher standard of behaviour than might otherwise be the case. This approach was, perhaps unsurprisingly, supported in the Court of Appeal decision in Henderson v London Borough of Hackney [2011]. In that case an inclusion manager at a school who dealt with vulnerable children, some of whom had been the victims of sexual abuse, was dismissed for viewing pornographic images and forwarding them to colleagues on a work computer. In the evidence the Tribunal, which reached the initial conclusion that the dismissal was fair, heard that there were time when pupils would have unsupervised access to her computer and therefore could potentially view the material. Ms Henderson’s argument was that the school had no written policy on what could be viewed at work, or what could be sent on work computers. The material which she had viewed was not illegal, and therefore she argued that she had done nothing to justify dismissal. The Tribunal, Employment Appeal Tribunal and Court of Appeal all disagreed. The Court of Appeal held that it should not have been necessary to spell out to a person in Ms Henderson’s position that she should not behave as she did – it was obvious.
One thing which was illustrated by the Henderson case was the benefit to an employer of having a policy which makes it clear that this type of behaviour in unacceptable in the workplace. Ms Henderson’s argument that she was not aware that she had done anything wrong because her employer hadn’t specifically told her that this type of behaviour was unacceptable did not succeed in this particular case, but her employer’s case would have been much stronger (and indeed Ms Henderson may never have brought the claim) if they had put a clear policy in place.
Look out for our article Porn in the workplace – Part 2 in next month’s ebulletin.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).