Police Pornography Warning For All Employees

PHILLIPS FOX MEDIA RELEASE
April 22 2005

Police Pornography Warning For All Employees

Sending pornographic emails at work can get you sacked.

John Hannan, an employment partner in the Auckland office of commercial law firm Phillips Fox, says the current police pornography scandal is a reminder about the perils of misusing email and the internet at work.

Although cases relating to misuse of the internet have been surprisingly few in New Zealand, Mr Hannan says this will probably increase with most employees being able to download material from the internet, including games and pornography.

A recent British survey found those firms that have terminated staff over abuse of emails in company time gave the sending of unauthorized emails, usually pornographic, as the single most common reason. A 2002 British study found that nearly two-thirds of email and internet-related sackings were for accessing or distributing pornographic or sexual material.

Mr Hannan says that in New Zealand, employers are entitled to ensure that the workstations and materials they provide are being used for their intended purpose. This includes the right to access emails sent and received to a work computer and the right to monitor both time spent and sites visited on the internet.

"To avoid the hassles of disciplinary procedures over email misconduct, it is imperative for employers to have a clear 'Acceptable Use Policy' (AUP) to govern email and internet use. To be enforceable, employees must be made aware of this, and preferably provide an explicit written acceptance of the AUP terms."

However, Mr Hannan adds that a good AUP will only go so far.

"Possession of illegal images will almost inevitably justify dismissal. But past cases have demonstrated that if objectionable or inappropriate (but not illegal) material is found on an employee's work computer, dismissal won't always be justified. It depends on the prevailing workplace culture, what staff have been told about acceptable use, whether other staff have complained about being exposed to the material and how other staff who have done the same thing have been treated. Procedural issues govern whether or not this type of misconduct will justify dismissal.

"Employers have to treat employees who are suspected of accessing, passing on or trading pornographic or offensive material consistently. Employers have to investigate in a fair and reasonable manner. This may be more difficult following last year's legislative changes to the definition of "good faith" and to the test for justifying dismissal or other disciplinary action. The Employment Relations Authority can substitute its own judgment of what is reasonable – that won't always be the same as what an employer thinks is reasonable."

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