Email and internet use at work
The use of technology can boost the productivity of employees but the abuse of that technology either by inappropriate use of email or social networking sites may expose employers to significant risk. For this reason a policy on usage should be included in the contract of employment. The policy is essential to avoid a situation where an employee might use his employer’s IT systems to download or distribute illegal or objectionable content which may render the employer liable under the Child Trafficking and Pornography Act, 1998. For example in R v Fellows and Arnold employees used the computer of their employers to store data which enabled it to display indecent pictures of children on the computer screen and to produce prints. Similarly, an employer might be held liable for defamation where an employee posts defamatory statements about another person or company. For example an employer was held liable for defamation in Western Provident Association v Norwich Union 1997 when employees of the defendant company (a competing company) sent e-mails alleging that the plaintiff was insolvent and under investigation. The resulting defamation action was settled for a sum reported to be in the region of £450,000 sterling.
As a matter of both fair procedures and prudence, any internet and email usage policy should clearly state the consequences of failure to comply with its provisions. Furthermore, great care should be taken by employer to both inform employees of the contents of such policies and also ensure that the employer can establish that employees have been given the necessary information. If an employer intends that its employees be disciplined for breaches of its policy, it is essential that that policy set out clearly how that disciplinary process may be initiated and the likely outcomes. The consequences of an employer failing to clearly inform employees of possible sanctions is best illustrated by the decision of the EAT in O’Leary v Eagle Star Life and Pensions. The claimant was one of a number of employees who had joined a fraternity calling themselves ‘The Legends’. This group was alleged to be ‘harassing staff and forming hit lists of people within the company that they identified as ‘company men’. The employer was able to produce emails that threatened violence towards individuals and declared ‘war towards company men’. The EAT however, found that ‘the misuse or abuse of emails has not been defined within the company structure as ‘gross misconduct’ and accordingly warrants a warning, verbal or written but does not warrant dismissal as a course of first instance’. The EAT found that the claimants dismissal was unfair. Furthermore, in Mehigan v Dyflin Publications Ltd  the EAT stated ‘It is highly desirable for employers to include in their email policy/Internet policy a statement to the effect that the sending of offensive mails is prohibited and will be dealt with in accordance with the companies email procedures. … Clearly the Employment Appeals Tribunal or any other third part will be heavily influenced by the existence of a written email and internet policy where the employer reserves the right to dismiss for breaches of policy. It is unlikely that the use of the internet for unauthorized purposes will amount to a sufficient reason justifying an employer from dismissing an employee without notice in the absence of a clear written statement to his effect in the company’s policy. An exception to this perhaps, would be a situation where an employee was using the company’s facilities to download obscene pornography from the internet’. 
Finally it is crucial that any policy is consistently applied to all employees. In the Labour Court decision of Citibank v Massinde Ntoko the complainant was dismissed for making a personal phone call. The evidence was that although the making of personal calls was prohibited, it was generally not enforced. This amounted to a prima facie case of discrimination on the grounds of race which the employer was unable to rebut.
There are many reasons why an employer might have to investigate activities in the workplace the most obvious one being that an employee, customer or supplier has a grievance. There may be a disciplinary matter, a fraud or breach of contract or breach of employment policies. Employees might abuse their positions and might be using the employer’s database to access inappropriate information which may be in breach of the Data Protection Acts. There may be bullying or harassment or a breach of regulatory obligations. Allegations could be made by a whistle blower which may lead to regulatory investigation by for example the ODCE, HSA, NERA, Central Bank or Competition Authority. There may be a criminal activity or a legal issue may be identified through monitoring email or internet use. Indeed a matter may be brought to the employer’s attention through the media.
In these circumstances, an employer should follow the organisations grievance and disciplinary policies (see Code of Practice on Grievance and Disciplinary Procedures), bullying and harassment policy (The Code of Practice on Sexual Harassment and Harassment at Work 2002 and Code of Practice on the Prevention of Workplace Bullying 2007) and /or policy on whistle blowers.
Fairness is essential and an employer must follow fair procedures and comply with the rules of natural justice.
1. Audi Alteram Partem (you must hear the other side); An employee has the right to be informed of the charges against him.
2. Nemo Iudex in Causa Sua (there must be no bias).
In Re Haughey it was stated that a person whose conduct is impugned as part of an inquiry must be given reasonable means of defending himself. This means he must be furnished with a copy of the evidence which reflects on his good name; given the right to cross examine, by counsel his accuser and allowed to rebut the evidence. The first case where the principles were applied directly in an employment matter was Glover v BLN Ltd where it was held by the Supreme Court that there was an implied term in the plaintiff’s contract of employment that an inquiry into his misconduct would be ‘fairly conducted’ and this term was breached as he had not been informed of any charges and was given no opportunity defend those charges. The facts were that the plaintiff’s contract could be terminated early in the event of gross misconduct. There were complaints made against Mr. Glover and the defendants investigated them and dismissed him without being told of the complaints and given an opportunity to dispute them. In grievance and disciplinary matters the Code of Practice on Grievance and Disciplinary Procedures SI 146/2000 ideally should be followed.
In Dunne v Harrington it was held that an employer may investigate personally, confronting the suspected employee with evidence, listening and giving fair value to the employee’s explanation, allowing him to be represented and produce counter evidence. Alternatively, he may rely on the reports of others but he will be in breach of the rules of natural justice if he does not confront the employee with the contents of the report, hear the employee, investigate the complaints, give him reasonable opportunity to rebut the evidence and be represented. : ‘..[T]he fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved. The Tribunal therefore does not decide the question whether or not, on evidence before it, the employee should be dismissed. The decision to dismiss has been taken and our function is to test such decision against what we consider the reasonable employer would have done and / or concluded’.
An employer is obliged to act reasonably and what is and what is reasonable depends on the nature and extent of the enquiry carried out by the employer prior to the decision to dismiss, and the employer’s conclusion following such enquiry. The key questions to be answered are: Does the company believe the employee misconducted himself? If so, does the company have reasonable grounds for that belief? And finally, if there are grounds, was the penalty of dismissal proportionate to the alleged misconduct.
Dismissal and the Principle of Proportionality
Any penalty applied to the employee must be proportionate to the gravity of the breach of policy. A decision to dismiss an employee who posted disrespectful comments about a manager on Bebo was disproportionate to the offence (despite having fair disciplinary procedures) in Kiernan v A-Wear. However, in a recent UK case Whitham v Club 24, the claimant made the following statement on her Facebook page: ‘I think I work in a nursery and I do not mean working with plants’. The decision to dismiss her was unfair given ‘the relatively minor nature of the comments’. The Employment Tribunal further stated that ‘the decision to dismiss the claimant was outside the band of reasonable responses’. In Ireland, a different approach has been taken by the Employment Appeals Tribunal although the facts are quite different from Whitham. In O’Mahony v PJF the dismissal of an employee for making disparaging comments about the company and one of the company directors justified her dismissal as it amounted to a breach of trust that made her continued employment unacceptable. In this case a director of the company accidentally came across statements which were made on O’Mahony’s social networking page which was open on a computer screen in the office. She was suspended with full pay pending an investigation. She was called to a disciplinary meeting which she attended with a colleague. Her employer’s asked for her permission to access her face book page as they had concerns about there being a breach of confidentiality within the business. O’Mahony agreed. The page revealed disparaging statements made about the company and contained a number of expletives. On her page she referred to one of the directors as a ‘bitch’. The EAT held that the ‘sending of electronic messages disparaging of the directors of the respondent company and which would have been personally offensive to one of the directors in particular, amounted to a breach of trust of such significance that the Tribunal feels that the claimant’s employment in the respondent’s business became completely untenable’. They further stated that that her employer’s had ‘acted reasonably in the manner in which they dealt with the matter up to and including their dismissal of the claimant from her employment’. The important point here is that fair procedures were followed at all times and the statements were disparaging of the company and a named director which was not the case in Whitham.
The requirement to follow fair procedures was again highlighted in Murray v BOI and Rooney v BOI when the Bank dismissed the plaintiffs where emails of an indecent, obscene and pornographic nature were circulated. The EAT found the investigation to be flawed (the bank only examined a small sample of emails and the plaintiffs were excluded from the investigation). It was held that it was ’not a proportionate response’ to the breach of the bank’s email policy to dismiss them.
The Code of Practice on Grievance and Disciplinary Procedures provides that disciplinary action may take the form of an oral warning, written warning, final written warning, suspension without pay, transfer to another task, demotion, some other appropriate disciplinary action short of dismissal, dismissal.
The company’s acceptable use policy on internet and email use should expressly deal with the use of social networking sites. It should prohibit the posting of offensive statements and set out the consequences for breaches thereof. It is also important to bear in mind that zero tolerance policies do not in themselves entitle an employer to dismiss an employee who is in breach. The EAT will consider the employees knowledge of the policy and whether fair procedures were followed.
  1 Cr App R 244
 2003 ELR 223.
 EAT 582/2001.
 Further case law on this area will be discussed under ‘Dismissals’ in this handbook.
  15 ELR 116
 For example, Mark Tighe in The Sunday Times reported on the 21st of August 2011, p.1, that two civil servants from the Department of Social Protection had their pay cut after an internal investigation found they abused their positions and breached data protection laws. One employee lost a two year pay increment after he admitted using the department’s database to get information on an ‘attractive woman’ in order to confirm her date of birth out of ‘curiosity’. He was warned following an investigation that he would be dismissed if his actions were repeated. A freedom of information request revealed the information. See also ‘enforcement’ under ‘data protection’ above.
  IR 271
  IR 388
 UD 166/1979
 Bunyan v United Dominions Trust (Ire) Ltd  ILRM 404
 Hennessey v Reid & Wright Shop Ltd UD 192/1978
 Noritake (Ireland) Limited v Kenna (UD88/1983)
 Para 41.
 Similarly in Audrey Burtchaell v Premier Recruitment International UD1290/2002 the employer found out that the claimant had sent abusive and defamatory emails to members of staff. Following an investigation she was called to a disciplinary meeting. When she was unable to offer an explanation or apology she was dismissed. The EAT held that her use of company email was not in line with the company’s policy and their nature were ‘at the very least offensive and resulted in creating a tense and unpleasant atmosphere in the place of employment affecting in particular employees at senior level’. This also destroyed the mutual trust and confidence in the relationship.
  unrep. See http://www.irishexaminer.com/ireland/kfgbidididql/rss2/
 SI 146/2000
 Heffernan v Dunnes Stores UD1355/2009. See Compton A, Proportionality of response and potentially serious consequences of employee’s conduct, (2012) 9(2) IELJ 64.