Laing O’Rourke is not the only employer to take a tough stance on IT misuse, but how far can employers go and how can they ensure staff are treated fairly?

Yesterday Building reported Laing O’Rourke’s dismissal of 12 staff for forwarding an inappropriate image. So what are the rules around misuse and what pitfalls should employers avoid? And why should we deal with IT misuse?

The law is very clear - in various ways it is unlawful to harass employees. Employers are generally responsible for their employees actions in this area. For example, if Jane walks past Tony’s computer screen at work and sees a pornographic image on it which she finds offensive she will often have a strong sex discrimination claim against her employer. Her employer’s defence will depend on how seriously it takes this sort of issue, for example how much training did it give to its employees on equality and diversity and what are its rules on IT usage?

In addition, reputational risk is more and more important to employers - construction businesses are routinely asked about their records on equality and diversity when bidding for public and private sector contracts.

Setting the bar

Businesses can mainly make their own disciplinary rules. That means they can set the standards expected of their employees. So the first question is “how strict do you want to be?”

Businesses who want to take a strict approach to IT misuse need to state this in their disciplinary and IT use procedures. This often means stating that such misuse is categorised as gross misconduct. It also means being clear about permitted and prohibited IT usage, with examples of each.

Be consistent

Inconsistent treatment of employees can lead to successful unfair dismissal and discrimination claims. This is often one of the trickiest issues for businesses - should Fred who passes on one slightly questionable joke be treated the same as Peter who constantly accesses and forwards on explicit pornography? The answer is businesses can lawfully treat employees differently as long as the circumstances are dissimilar.

This is where zero tolerance comes in. Businesses can say “we will not tolerate any of this misbehaviour”. There is some risk a tribunal will say dismissal for a minor breach is unreasonable (and so unfair). However tribunals will have a lot of regard to the business’ disciplinary rules categorising such behaviour as gross misconduct.

Social networking sites

This is one of the trickiest issues. Businesses often encourage employees to network through these sites. How many businesses are themselves on Twitter and Facebook? It is clear that businesses can set rules about the use of these sites.

It is perfectly legitimate to prohibit criticism of the business or its employees whilst allowing the use of the site. Alternatively some businesses ban the use of such sites at work. It is a balancing exercise between how the business wants to present and market itself, how it wants its employees to market themselves, risks from inappropriate tweets by employees and frankly getting the job done.

In short, businesses can be strict in dealing with IT misuse. They just need to hope that not too many employees are misusing the IT otherwise they will have no employees left to do the job.

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