Think before you watch!

Tuesday 17 March 2015

Following my colleague Tom’s earlier blog entitled ‘Think before you type!’, the judiciary has provided us with a further example of what not to do whilst at work (on a judicial IT account).

In Tom’s blog, he pointed out two recent UK Employment Appeal Tribunal (EAT) decisions which have highlighted just how important it is for:

• employers to have properly drafted electronic communications and social media policies in place; and
• for employees to read those policies carefully and properly understand them.

Today, news has broken that three Judges have been dismissed for watching pornography at work. A fourth Judge has resigned before the conclusion of his disciplinary process. Apparently, the pornography viewed was not illegal and it did not involve content involving children. Surprisingly the Judges were not linked, being based in Lincoln, Romford, the North East and London respectively. So this news story records four separate instances of judicial gross misconduct, which is unprecedented.

It is currently unknown whether their contracts of employment or an applicable staff handbook/IT policy were referred to prior to dismissal. Of course, gross misconduct in such a position of seniority is difficult for those in question to defend. It is unlikely that they will appeal the decision to dismiss and it would be interesting to see what an application for Judicial Review might look like.

In the normal sphere of employment, disciplinary action surrounding the misuse of electronic communications is less clear cut. Tribunal decisions are very much dependent on the facts of each case and the actions of the employer throughout investigations, including their reliance on clearly worded policies. If you haven’t already, make sure you familiarise yourself with the case law below:

Game Retail Ltd v Laws

The Claimant in this case was dismissed after it was found that he had tweeted extremely offensive posts on his private Twitter account. At first instance the Employment Tribunal (ET) considered that the dismissal was unfair on the following basis

• The Claimant’s account was private;
• It was used for communicating with acquaintances outside work;
• He used his own mobile phone to Tweet;
• His use of Twitter was in his own time; and
• He provided explanations for some of the offensive Tweets.

The EAT allowed the Respondent’s appeal and held that the ET had not properly considered whether the employee’s use of Twitter was truly private, given that he was ‘following’ 100 of the Respondent’s stores and was ‘followed’ by 65 stores. The issue in this matter was not whether the Tweets were derogatory towards the Respondent business, but whether the Respondent’s employees were receiving the Tweets, contrary to the Respondent’s harassment policy, or whether Tweets would be received by customers /potential customers as a result of the employee’s ‘Twitter relationship’ with other stores, potentially in breach of an electronic communications policy.

Atkinson v Community Gateway Association UKEAT

The Claimant claimed constructive unfair dismissal, based on a complaint that his electronic conduct had been investigated in such a way that amounted to a repudiatory breach of his contract of employment.

Whilst investigating the Claimant’s conduct the Respondent had accessed his emails and discovered that he had sent sexual messages to his ‘lover’. The Claimant contended that his right to respect for private and family live under Article 8 of the European Convention on Human Rights (ECHR) had been breached by the Respondent’s investigation.

The EAT found that Article 8 had not been breached by the Respondent. It had reviewed the workplace email account during its disciplinary investigation and had done so in accordance with its Internet and Email Acceptable Use Policy. The Claimant was even responsible for the enforcement of this policy. As a result of the terms of the policy, both the ET and the EAT held that the Claimant had no expectation of privacy in relation to his emails whilst at work.

If you require further assistance regarding electronic communications in the workplace, please do not hesitate to contact a member of the Employment Team at Blacks on 0113 207 0000.