Failure
to clarify policy on e-mail and internet use can leave firms vulnerable to
racial or sexual discrimination claims
Evil
communications corrupt good manners. So says the Bible. It is doubtful that
Trevor Luxton, an employee of Credit Lyonnais, had this in mind when he
e-mailed an account of his sexual exploits to a few friends. In an electronic
instant he became the main topic of gossip in the City, courtesy of those
friends, then enjoyed his moment of fame in the tabloids which felt obliged to
reprint the entire e-mail.
Credit
Lyonnais quickly let it be known that disciplinary proceedings had begun. Just
another sordid day at the office, or are there lessons to be learnt?
One
can see the employers’ point of view. Large businesses spend huge budgets
polishing up their brands trying to achieve the perfect image only to have
their names dragged into the gutter by their employees. It cannot play well in
the boardroom.
A
recent survey published by Personnel Today revealed that 53 per cent of all
businesses now have definitions of gross misconduct in their guidelines which
expressly include sending pornographic e-mails.
Just
as well, perhaps, because the same survey disclosed that in the past 12 months
employers were taking disciplinary action against staff for misusing e-mail and
the internet more frequently than for dishonesty, violence, and health and
safety breaches taken together.
There
is also more at stake for employers than the protection of their image. A
failure to discourage e-mail and internet abuse, particularly in the case of
racially or sexually offensive material, can leave employers vulnerable to
allegations that they have not adequately protected affected employees from
discrimination and harassment. Claims of this nature are for uncapped
compensation and nearly always attract damaging publicity and constitute a
rapidly growing area of risks it makes no sense to ignore.
Awareness
of this risk has led to employers increasing the scale on which they monitor
e-mail and internet use. The key requirement here is that employers obtain the
consent of employees to such monitoring. A failure to do this will put them the
wrong side of the data protection laws, which can lead to criminal penalties as
well as create problems under the Human Rights Act.
One
in 10 employers are still monitoring without permission according to the
Personnel Today survey. Perhaps even riskier still, 12 per cent of those
canvassed do not monitor at all.
The
main lesson to learn, however, is that employers are failing to get their
communications right. Their existing techniques do not work. The widespread
existence of written policies complying with legal obligations has not
prevented the growth of time-consuming misbehaviour.
Luxton’s
employers claimed he had acted in beach of their rules but those rules solved
nothing and the growing numbers of this type of disciplinary incident proves
this is not an isolated case.
Of
course rules are needed, but more work seems to be required to let staff know
what these are, perhaps by on-screen reminders and similar techniques. Software
and firewalls will prevent a lot of unwanted traffic and the economic case for
investment in them is easily made.
All
these measures, while helpful, do not address the main issue, however. Most
effective of all would be the creation of a working environment where the
prevailing culture and values discourage unwanted activity and peer pressure
takes over from the threat of sanctions. Those who think this is far too much
effort should reflect on the risks that would be eliminated – not to mention
the reduced legal budget. Money that would be better spent, perhaps, on
promoting that desired image.
Key
points
–
Failure to discourage e-mail and internet abuse can leave employers open to
allegations of discrimination and harassment
–
Employers must obtain consent of employees to monitoring e-messages
–
Employers must inform and constantly remind staff of its e-mail/internet policy
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–
Create a culture where possible where peer pressure discourages inappropriate
use of the internet
By
Stephen Levinson, Partner, KLegal
