It’s not just a question of disciplining employees. Employers too can be in the firing line if steps are not taken to stop the circulation of offensive material off the net. Osborne Clarke employment specialist Emma Nelson investigates at http://www.marketinglaw.co.uk/open.asp?A=666
A female employee has recently complained about male colleagues in the office downloading obscene images from the Internet and circulating these around the office. How should we deal with this?
All employers owe a duty to protect employees from harassment in the work place - downloading and circulating offensive or explicit material within the office can create a hostile working environment. Failure to deal with the situation could ultimately result in the Company having a sexual discrimination and/or harassment claim brought against it and the Company finding itself vicariously liable for the conduct of its employees.
What should we do?
You will need to deal with those employees who are circulating the offensive material. If you have a disciplinary procedure in place you should follow that procedure. You should put together as much information prior to any disciplinary hearing as possible. A few practical tips:-
· obtain a print out of the Internet sites recently visited by the male employees. Try to get details such as when sites have been accessed, for how long and by whom;
· if possible, obtain copies of the type of material that has been circulated within the office and any emails used to forward the material;
· take a full note of what the female employee has reported and, if appropriate, speak to other employees who share the same office or workspace.
Can I dismiss the employees immediately without notice?
Depending on the severity of the circumstances, the downloading and/or circulating of pornography could constitute gross misconduct, entitling you to summarily dismiss the employees. Much will depend on the nature and volume of the material and whether the material has been downloaded during working hours.
An alternative outcome of the disciplinary meeting could be a written warning or a final written warning. You should make it clear to the employees that the Company considers the employees' behaviour to be totally unacceptable and you should make it clear that any further repetition could result in the employees being dismissed from the Company.
How can I ensure that this does not happen again in the future?
We recommend that you put in place a formal email/Internet policy. The policy must be carefully drafted and brought to the attention of all Company employees. You can either add the policy to an existing staff handbook or publish it on the Company's intranet.
Points to include:
· Specifying what kind of email and Internet use is permitted and when it is permitted. Consider setting limits on the circumstances in which employees may use Internet access facilities for personal reasons.
· Setting out any express restrictions on material from the Internet that can be viewed or copied. For example, the policy could include a ban on the use of the Company system to download, retrieve or view images or text of a sexual, pornographic or otherwise offensive nature.
· Stating what the likely sanction will be for misuse of email and the internet – for example, that the downloading of pornography may render the employee liable to disciplinary action, including summary dismissal for gross misconduct.
· Explaining how employees can report unlawful or inappropriate use of email or the Internet to management, including, if appropriate, a provision for anonymous reporting.
