Catherine Grady, of law firm Dickinson Dees, outlines the risks employers face if staff access pornographic images or other offensive material in the workplace
Your receptionist has observed another member of staff viewing pornography on the internet. Your head chef has printed off some of these images and displayed them in the kitchen as a joke. A waitress has resigned in protest and has threatened to bring claims of sex discrimination and constructive unfair dismissal. What procedure should you follow to prevent this from happening, and how can you protect yourself against potential claims?
The Law The law on sexual harassment has recently been tightened up by the Employment Quality Regulations 2005. Now non-verbal conduct of a sexual nature, such as the display of pornographic or sexually suggestive pictures and the viewing of such material, whether publicly displayed or not, will almost certainly constitute sexual harassment.
Employers are at risk of being vicariously liable for unlawful acts carried out by their employees in the course of their employment. This means any offending act by an employee, whether at work or in a situation closely connected with it, is likely to be treated as having been committed by their employer, regardless of the employer's knowledge or approval. Employers must prove that they've taken steps to prevent their employees from committing offending acts.
Expert Advice The starting point is to ensure that systems are in place to monitor internet abuse and the display of offensive images.
Monitoring Before implementing monitoring systems, which may include the use of a web filter, employers should check their legal obligations. An impact assessment should be carried out before monitoring staff, to identify why the monitoring is carried out, how, by whom, and what steps are being taken to protect employees' rights. If monitoring is to be used to enforce disciplinary rules, employees should be made aware of this. Employers must also ensure that employees are aware they're being monitored, and the reasons for the monitoring. Employees should be given the chance to comment on any information obtained through monitoring, before any disciplinary action is taken against them.
Communications policy Employers are advised to put a communications policy in place to set out how workers are supposed to use communications systems. This should cover use of e-mail, internet, telephones, mobile phone and fax. It should also cover the display of information acceptable, expected standards, confidentiality and the purpose and methods of monitoring. Most important, employees should receive training to use equipment in compliance with the aims of the business. A clear statement should be made highlighting that where there's any evidence of misuse, employees could face disciplinary sanction, including, in more serious cases, dismissal.
Equal opportunities Employers should review and update their equal opportunities and harassment policies to ensure that employees are in no doubt that downloading and displaying pornographic material in the workplace will be in most cases an act of gross misconduct which could lead to dismissal. Employees should be reminded of the sensitivities of others, and again, equal opportunities training should be provided to highlight potential problem areas.
- Contact an employment lawyer who has experience in discrimination issues.
- Review any existing equal opportunities, communications and monitoring policies to see how they can be improved to prevent future harassment claims
- Devise a training programme for all staff outlining the requirements of the business with regard to the various policies put in place.
Beware! Discrimination and harassment claims can be difficult to defend, and potential payouts are unlimited. Even material which may appear harmless may be considered offensive by some employees. Remember, employees don't actually have to see "offensive" material - they need only to know of its existence to bring a claim for harassment. Incidents of staff accessing pornography or other inappropriate material is on the increase, and with new legal requirements, employers must be vigilant and take steps to minimise their exposure.