The media has recently reported the case of 3 judges who were removed from office for viewing pornography on IT equipment supplied by the Ministry of Justice. There was nothing illegal about the porn sites which they were viewing, but the Judicial Conduct Investigations Office held that using judicial IT equipment for this use was nonetheless wholly inappropriate.
So what are the rules for “normal” employees? In short, similar. Viewing or distributing pornographic material at work is viewed by most employers as gross misconduct, and, even if the pornographic content is not in itself illegal, dismissal without notice is likely to be a fair outcome provided that the employer has followed a fair disciplinary process. Similarly, even if the material is viewed or sent out of working time, but on the employer’s equipment, dismissal for gross misconduct is the likely outcome. Many employers will specifically list misuse of computer and other IT equipment as an example of gross misconduct, but even where they do not, Tribunals are unlikely to have much sympathy with employees who are dismissed.
What will constitute a fair disciplinary process? First, the employer will have to have reasonable grounds for suspicion. With these types of cases the suspicion is usually aroused in one of 3 ways: another employee seeing the images on the screen and reporting the employee, a recipient of an email with an inappropriate image reporting it, or a scan by the IT department of the web sites viewed by individual employees. Employers do need to consider whether they should routinely scan their IT system for inappropriate material, particularly with regard to the Data Protection Act and, in the public sector, the Human Rights Act. It is always advisable for employers to reserve an express right in the contract of employment to allow them to access emails and monitor other IT usage.
Once the suspicion of inappropriate activity is aroused, the employer will be expected to carry out a reasonable investigation. Usually that is relatively straightforward as the computer’s history will hold all the information – even if the employee thinks they have deleted it. Finally, the employer should hold a disciplinary hearing at which the employee is given the opportunity to make their representations. In most of these types of cases the issues are pretty clear, and the evidence often overwhelming. In the absence of any credible and believed explanation from the employee, their dismissal is very likely to be fair.
What steps can employers take to reduce the risk of employees misusing their equipment? They can put filters on which web sites can be accessed, but these are not foolproof and can cause operational issues as they sometimes block legitimate web sites as well. They should also have a clear disciplinary policy which makes it clear the misuse of IT equipment can lead to dismissal for gross misconduct.
We have advised employers on a significant number of dismissals for misuse of IT equipment, ranging from viewing porn sites to sending inappropriate pictures by email. We have also assisted clients with issues where employees have filmed their own sexual exploits and then viewed them at work! We have also drafted many disciplinary procedures and IT policies to help employers head off problems, or at least to deal with them if they do occur, and if this is something which you would like help with, please let us know.
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]).
Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.