The Employment Appeal Tribunal recently ruled that downloading pornography
at work can be gross misconduct
In a decision that most, but not all, personnel managers will regard as an
early Christmas present, the Employment Appeal Tribunal in Thomas v Hillingdon
London Borough Council (The Times, 4 October 2002) has decided that for this
local authority employer to dismiss an employee – after 14 years’ unblemished
service – for accessing hard-core pornography from the internet, was fair.
In doing so, the EAT overturned the decision of the tribunal in Watford. It
held that it was perverse for the employment tribunal to hold that the
dismissal fell outside the "band of reasonable responses" test.
Our instincts seem to tell us that this decision must be right. However,
when analysing what exactly is so wrong with what Mr Thomas did, the grounds
for dismissal become more complicated to justify.
Assuming that no-one else saw what Thomas was doing, was he hurting anyone?
There is no suggestion he was e-mailing the pornographic material to his
colleagues. And if the people in the pictures on the websites were consenting
adults, did he cause anything illegal to happen?
It could be said that Thomas was doing this in his employer’s time, but if
he had been phoning a friend, reading page three of The Sun or even looking at
a pornographic magazine, would he really have faced the sack after 14 years’
unblemished service? The answer to all three questions must be no.
There are two distinguishing factors. Misusing a computer is somehow
different. Computers and the internet are immensely powerful instruments which
can be used by employers to further their business to great effect. It follows
that there is an equivalent danger posed by the misuse of these tools. It might
have been argued for Thomas that where society (in the form of the EAT, at
least) seems to struggle is in acknowledging the distinction between different
forms of computer abuse – more particularly, private and public misuse, perhaps
chipping in a reference to the Human Rights Act.
It is for that reason that well-advised employers have long since had in
place computer and internet abuse policies. These policies should take into
account all the various issues that arise under the Data Protection Act,
Regulation of Investigatory Powers Act, Lawful Business Practice Regulations
and so on.
Critically, such policies should also set out what are authorised and
unauthorised uses of computers and the internet, and warn staff that certain
acts will be treated as instantly dismissible offences. This enables an
employer to take advantage of the rule that a warning in a properly-circulated
policy that something is a sackable offence can act as a substitute for a
formal disciplinary warning and render what otherwise would have been an unfair
dismissal, fair.
But, there needs to be a sensible balance adopted. Policies that claim to
constrain staff too tightly are unlikely to be treated by a tribunal as
entitling employers to dismiss staff for very minor offences. In any case,
extreme approaches lack credibility and end up being applied inconsistently,
resented or ignored by staff including HR officers themselves. This brings us
back to Thomas’s case and the second distinguishing factor: Thomas was the lead
personnel officer.
The moral of this case is not only that employers have considerable scope in
setting high standards in their internet policies, but that HR, in particular,
should be observing those rules.
Gareth Brahams, Partner, employment department, Lewis Silkin
