31 March 2015

Four judges, one football club, and pornography in the workplace

What links four judges and one football club employee? The clue is, of course, above – they have both been in the news recently in connection with the viewing of pornography in the workplace.

The BBC reported earlier this month that three judges had been removed from office after they were found to have viewed pornography using their official IT accounts. A fourth judge resigned pending the outcome of the investigation. There was no suggestion that the pornography being viewed by the judges was illegal in nature, but their conduct in accessing the material via official judicial accounts was found to be inappropriate.

Meanwhile, in the case of Williams v Leeds United Football Club [2015] EWHC 376 (QB), the High Court ruled that Leeds United were entitled to dismiss Mr Williams without notice for forwarding an email containing pornographic images from his work email account. This was despite the fact that (i) the incident had happened five years prior to Mr Williams’ dismissal, (ii) the club had been actively looking for a way to dismiss Mr Williams without notice and (iii) Mr Williams had not been given, or seen, a copy of the club’s policy on internet and email use.

At first glance, these cases seem like good news for employers wanting to take a robust line on the viewing of inappropriate material in the workplace. However, both are unusual in some respects. With regard to the former, it is unsurprising that the conduct was considered “wholly unacceptable … for a judicial office holder”. With regard to the latter, Mr Williams’ claim was only for wrongful dismissal (i.e. his notice pay). If Mr Williams had been claiming unfair dismissal, where employers are subject to more stringent requirements of procedural fairness, the outcome might have been different.

It is also worth remembering that fellow employees who are offended by the viewing of inappropriate material in the workplace may be able to bring a claim about this. In the case of Moonsar v Fiveways Express Transport Limited UK EAT/0476/04/TM, a female employee claimed sex discrimination as a result of the fact that her male colleagues, with whom she shared an office, viewed pornographic images in her presence. Although the images had not been sent to Mrs Moonsar and she had not complained about it at the time, her claim was successful. In discrimination complaints, employers will typically be vicariously liable for the actions of their employees unless the employer can show that it took all reasonable steps to prevent the employee doing the relevant act - hence, Mrs Moonsar’s claim was against her employer rather than the individuals concerned.

The takeaway message, therefore, is that assuming that all employees will implicitly understand that viewing/forwarding of pornographic images is unacceptable, is not necessarily sufficient from a legal perspective. Neither is simply having a policy – employers should ensure that employees are aware of the policy, that appropriate training is provided and that any complaints/breaches of the policy are dealt with effectively. And for anyone wondering how widespread the viewing of pornography in the workplace is, here is an illustrative statistic – in the year to July 2013, there were apparently 300,000 attempts to access pornographic websites at the Houses of Parliament. Food for thought as the General Election approaches.

1 comment:

  1. Food for thought indeed!!!!