Law briefs: Web in workplace creates legal issues

By GRAHAM HENSON

So you thought that a little scan around a few naughty internet sites in your lunch hour was your business? Surprised that a risqué e-mail you passed to a few friends has ended up in your boss' inbox? Wondering what to do now that the boss has called you to her office?

Scenarios such as these are occurring as the percentage of workers with access to the internet or e-mail programme climbs steadily.

The temptation is there for staff to use the technology for private purposes. The amount of use is more a managerial problem, but the content can create legal problems.

The crucial difference with this technology is permanency.

A telephone call, unless you regularly hold conversations sprinkled with the words bomb and Helen Clark and hear ominous clicking noises, is not recorded in any way.

A systems administrator, however, will commonly have the ability to drag up all those rather embarrassing e-mails you deleted over the past month, or supply your boss with a list of those marginal internet sites you visited recently. Not that the task will be easy, but it usually is possible. Exhibits A and B, your honour.

Will you be fired? Obviously that will depend on the content of the e-mail or downloaded material. Objectionable material would clearly result in your dismissal, as has happened in several cases already.

Assuming that the material is not in that category, on what basis can an employer discipline or dismiss an employee?

Recent court cases have indicated that the crucial factors are the company's e-mail and internet policy and the particular workplace practices.

In one case, three employees were dismissed for sending hundreds of inappropriate e-mails, including some that were derogatory and pornographic. The employees had been told in initial training courses that the e-mail facility was a business tool.

The judge refused reinstatement, saying that the e-mails could have done considerable psychological and social harm and were contrary to the values and mores expected in the worksite. The employees were authors of their own misfortune.

In another case the court was more equivocal. The company's policy allowed a reasonable amount of personal use. Concern about the level of private use in the workplace led the company to offer an amnesty so that employees could clean out extraneous material from their computers.

Some material, ranging from inoffensive cartoons to pornography, remained. The company fired two employees. One was reinstated, pending a full hearing.

The court noted that, while there was serious misconduct, the phrase "reasonable amount" was difficult to reconcile with the company's complaint about the potential risk of viruses, and needed clarifying. The court also suggested that the company might enhance its credibility by reinstating the employees and clarifying its in-house policy.

Lastly, a third case shows that liberal workplace practices can shield an employee.

Helpdesk employees at the internet service provider ihug were reinstated following dismissal for posting graphically worded offensive e-mails on an internal mailing list.

The e-mails used some of the more colourful Anglo-Saxon words to describe what the employees would like to do to management.

The court temporarily reinstated the employees pending a full personal grievance hearing. It was arguable that there was an issue of privacy, as the e-mails had been sent on a private system, not ihug's.

The court said that the communications did not appear to be greatly out of character with others management apparently condoned in the workplace.

Overall, the cases show a need both for a reasonably detailed and clear company policy on internet and e-mail use, and consistent implementation of that policy.

For example, the policy should contain clear guidelines on what can be downloaded from the internet and what to do to prevent viruses. It might state that e-mails may be monitored. It might require training for new employees and signed acknowledgments that employees will follow the policy.

Importantly, day-to-day practice should be consistent with the written policy.

While many employers might like to claim that whatever goes onto an employee's computer is the company's property, ultimately the issue is one of finding a suitable balance between the company's business objectives and keeping its employees happy. After all, most businesses allow at least some personal telephone calls.

* Graham Henson is the editor of CCH E-commerce Law. CCH (NZ) is a tax, business and employment law publisher based in Auckland. For further information, see their website or phone 0800 500 224.

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