Gambling and the workplace: legal Q&A

Smoking at work demanded the attention of employers for many years before the law eventually intervened. And with new super casinos in the UK and the expansion of TV advertising about gambling from this month, does online gambling present similar and worrying risks for employers?

 

Q Should our organisation have a policy dealing with online gambling in the workplace?

 

A IT policies should cover use of the company IT systems for internet access by employees. Many employers use filters to block access to certain sites. While most do not impose an absolute ban on personal use of the internet, the policy should have rules about when personal use is permitted and the categories of sites that may not be visited, for example, pornography sites.

 

Clearly, it is desirable to have such a policy and review it from time to time. In a recent judgment, Copland v United Kingdom, the European Court of Human Rights decided that the UK had violated the claimant’s right to respect for her private life and correspondence under article 8 of the European Convention in the way that her telephone calls, e-mail and internet use were monitored at work. The claimant would have had less chance of success if the employer’s policy had been clear about monitoring.

 

Q Can an addiction to gambling constitute a disability for the purposes of the Disability Discrimination Act 1995 (DDA)?

 

A Disability for the purposes of the DDA includes a mental impairment that has a “substantial and long-term adverse effect on the ability of a person to carry out normal day-to-day activities”.

 

Addiction to alcohol, nicotine or any other substance is not an impairment for the purposes of the DDA. However, as addiction to gambling is not an addiction to a substance, it’s possible that an overwhelming gambling addiction may be a disability. Whatever the case, employers will have concerns for a number of reasons – for example, loss of time and reduced efficiency at work, domestic problems caused by excessive gambling that affect a person’s working life, and financial risks.

 

In its ’20 questions to ask yourself’ about compulsive gambling, Gamblers Anonymous says: “Have you ever committed, or considered committing, an illegal act to finance gambling? If you have a compulsive gambler in a position of trust, your business may be at risk.”

 

Q Can we monitor employees’ internet use to determine whether they are visiting online gambling sites during office hours? What if they are?

 

A The Copland case shows that monitoring can be in breach of the European Convention on Human Rights or the Human Rights Act 1998, in cases where it applies. A key issue in that case was that the claimant was not aware that her use might be monitored. It is essential to have a clear policy if you wish to monitor staff. Breach of the policy may then lead to disciplinary action.

 

Q Can we prevent employees from gambling online during their lunch breaks?

 

A Employers are entitled to decide what use for private purposes is made of the employer’s equipment, even after working hours. There could be a blanket ban – either no internet use at all or private use limited to specific times and excluding specific sites or categories of site at any time (for example, online gambling or pornography sites). The policy must, however, be clearly set out and communicated.

 

Q An employee has used his company credit card for online gambling. What can we do?

 

A A company credit card is generally issued for employees to meet expenses incurred on behalf of the company. This is not, however, universally so, and some employers permit its use for personal expenses that are recovered by deduction from salary or direct reimbursement by the employee. In the latter case, you may wish to consider expressly prohibiting the use of the company card to meet gambling expenses. Be cautious about deducting money from salary.

 

Q As forward-thinking employers, what measures should we consider to assist employees who are gambling addicts?

 

A As with alcohol addiction, the ability to assist an employee whose addiction is affecting work performance may be limited by the employee’s willingness to be helped and to do what is necessary to control the addiction. The fact that their job is at risk, coupled with offers of help, may be the trigger that is needed. Offering employee assistance programmes and, possibly, medical help and referral to such organisations as Gamblers Anonymous, are all possible options.

 

By Peter Cooke, head of European employment team, Covington & Burling

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