Workplace Internet Use: a matter of trust

Excessive internet use by employees in the workplace goes to the very heart of employer/employee trust and merits a robust response from the employer.

But law firms should ensure they have an adequate and effective internet and social media policy; and that in the event of a suspected breach, any investigation and disciplinary process is watertight. A recent case illustrates the importance of having robust internet policies and procedures.

City law firm Weightmans recently successfully defended an employment claim against it by a long-standing employer who it sacked for gross misconduct as a result of her internet use at work. The employee, a facilities assistant, had been with the firm for almost a quarter of a century.

She had been effectively ‘cyberslacking’ – a term referring to the use of work computers and other company digital devices for non-essential personal use during someone’s working day. Cyberslacking is a growing problem for all businesses and has a negative impact on work productivity.

The employee’s internet use came to light following her own rejection of other concerns and complaints about her behaviour. She had, for instance, brought her adult daughter (a Weightman’s ex-employee) and two young grandchildren into work during her lunch break, and the children had been unsupervised at certain times. There were complaints they were at risk because of automatic sliding doors and lack of direct adult supervision (a toddler had been seen crawling towards the doors).

At an investigatory meeting, she said she was working on her computer when her family had been on site. This claim proved a big mistake on the employee’s part: a request was then made for her internet search history and this showed hundreds of visits to sites such as Ryanair, Easyjet and Debenhams across just one month; and a consistently high personal use of the internet during the following month which was considered unacceptable.

Furthermore, the internet search history showed she had been online (and not for work purposes) at the time she argued she was working. The firm took the view that this amounted to gross misconduct because it showed contempt for the trust placed in the claimant. She was also found to have been untruthful in her explanations and she was therefore dismissed without notice.

Her internal appeal against dismissal because of her internet use was rejected (though she was successful on a separate issue). The partner who dealt with the appeal concluded that he could not believe her explanations because of her refusal to accept responsibility in the face of experts saying it went far beyond clicking to unsubscribe or delete, and that it showed evidence of extensive web surfing during working hours.

The tribunal ruling

Her claim for unfair dismissal was, said the tribunal, “ill-founded” and was rejected. It also described Weightmans’ procedure as “textbook”, finding that a thorough investigation had been conducted. There was clear hard evidence of the claimant’s internet usage, which was at odds with her explanation which was not credible.

The procedure followed was fair and generally within ACAS guidelines, and the firm’s decision to dismiss was within the range of reasonable responses.

Policies

Weightmans was credited for its textbook approach and firms would be wise to ensure they follow suit should an internet-related (or any other) disciplinary issue arise.

Firms should be implementing – or reviewing and amending – their policies governing employees’ internet use in the workplace, and their social media use. Just as importantly, all staff should be made aware of a firm’s policies and trained in them to ensure they are clearly understood.

However, as the tribunal set out in this ruling, it is for the employer to show the reason for dismissal and that it was a potentially fair one. The burden is on the employer to show that it had a genuine belief in the misconduct alleged under section 98 of the Employment Rights Act 1996. The issue for the tribunal was whether that belief is based on reasonable grounds having carried out a reasonable investigation; and whether the decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted.

It was stressed that this ‘band of reasonable responses’ test applies just as much to whether or not the investigation was reasonable in the circumstances as it does to the reasonableness of the decision to dismiss. Weightmans satisfied the tribunal on all counts.

Interestingly, there is no mention in the ruling of the firm’s policy on workers’ internet use though this could be because the employee’s internet use was so excessive it was not directly relevant. Had there been an internal disagreement over whether or not her internet use was excessive, any such policy would likely have been discusses or at least referenced by the tribunal.

Any firm’s policy should set out the parameters for workplace use of the internet. To what extent are your staff allowed to use the internet – and email - for personal use? What rights does the employer have to check internet search records? What reasonable procedures are available for firms where it is suspect a worker is exceeding what is reasonable use?

On a more general note, now that the General Data Protection Act (GDPR) is bedded down and ought to be a fixture in all firms’ privacy and data protection considerations, robust internet and email policies are vital to ensure firms are GDPR-compliant.

There is, for instance, a greater risk of firm data being leaked, and phishing activity and similar cyber risks where employees’ internet use breaches the firm’s policy – with the obvious risk of a fine and reputational damage.

 

 

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