Employment Law - e-mail abuse - 12/2000

A case decided at the Employment Tribunal in Leeds has attracted a lot of publicity in recent days. Two employees who were dismissed for distributing smutty e-mails to their colleagues lost their claims for unfair dismissal.

The Tribunal found that the employer was justified in dismissing the two employees because of the quality and quantity of the e-mails. The content was inappropriate and the number of messages being sent indicated that the employees concerned were misusing both the employers time and the employers facilities.

It is important to remember that despite headlines such as Now you can be sacked for e-mail abuse, the normal rules of unfair dismissal apply. A fair procedure will have to be followed, namely a proper investigation followed by a disciplinary hearing. The employer will have to consider whether dismissal is the appropriate sanction, or whether a lesser sanction such as a warning would be more reasonable. Dismissal for a first offence, unless very serious, may well be unfair.

An employer is more likely to be found to have acted fairly in such cases if they have written policies for use of e-mail or Internet facilities, specifying acceptable and unacceptable uses and the potential consequences of misuse. The whole subject of monitoring e-mails and other communications is confused at the present time with the Human Rights Act, the Lawful Business Practice Regulations and draft guidance from the Data Protection Commissioner giving conflicting signals. Any employer who gives employees access to the Internet or e-mail without having a proper policy in place faces considerable risks.