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Dismissal following abuse of internet and email
Employee access to the internet is becoming more and more common place.
Employees are able to download material from the internet, including games and pornography. Surprisingly, very few cases have come before the Employment Court and Tribunal concerning what has now become a widespread problem. The Employment Court dealt with one case recently.
Methanex permitted employees to use its internet e-mail system for personal use provided use was "kept to a reasonable amount". The loading of unauthorised software was prohibited and employees faced disciplinary action if they were caught doing so.
Methanex became concerned about staff downloading and installing unauthorised software, games, and pornography onto its computers. This exposed the system to computer viruses, wasted disc space and potentially rendered the company liable for breaches of copyright. It also meant the company's computer staff had to waste time removing material from the system.
The Company decided to have a moratorium whereby employees could report the existence of material on their computers and have it removed without fear of disciplinary action being taken. The Company also made it clear in a memorandum that, after the moratorium, any future incidents of unauthorised material on computers would result in disciplinary action, and that dismissal was likely.
After the moratorium, five staff were found to have unauthorised material on their computers consisting of e-mails that ranged from inoffensive cartoons through to what the Employment Court described as "hardcore pornography". Two were given final warnings, and another two, Niki Allerton and John Offord, were dismissed.
Both Mr Allerton and Mr Offord brought personal grievances. They claimed their dismissals were unjustified because the Company's decision making process was unfair and unreasonable, they were treated disparately when compared to the other three employees who also had unauthorised material on their computers, and that in any event they had not committed serious misconduct.
Because it would take over two months for the Employment Tribunal to determine their personal grievances, they applied to the Employment Court for an interim injunction reinstating them to their jobs temporarily in the meantime. To be reinstated they had to persuade the Court they had an arguable case of unjustified dismissal, that they would suffer greater harm if reinstatement was refused than the Company would if they were reinstated (called the "balance of convenience"), and that the overall justice of their cases favoured reinstatement.
 | After carefully considering each case, the Court granted Mr Offord interim reinstatement, but refused Mr Allerton's application on the grounds that the balance of convenience did not favour him. Unlike Mr Offord, he was not a long serving employee, and had no dependents. He had also sent an e-mail requesting a friend to send him "porn ... to make his night a little more lively at work". "To this extent he may be found to have been the author of his own misfortune" Judge Colgan said. |
As Mr Offord's reinstatement is only temporary, he must now win his personal grievance case and persuade the Employment Tribunal that permanent reinstatement is warranted- otherwise his dismissal stands.
This case sounds a warning to employees regarding their use of the internet at work. Many employees do not realise that deleting an internet file does not necessarily mean that the file has been purged from their computer. Most often, it is saved in another part of the computer's memory and can be retrieved by a computer technician. Many firms have also installed porn checkers on their computers systems, which report on staff who search sites using search words that are known to bring up porn sites.
See Also
The outcome of his personal grievance case
An Employer's Rights: Surfing All The Day
More on Termination & Dismissal
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