Can you sack someone for watching porn at work?

Would you know what to do if one of your employees is caught watching porn at work? HR and line managers should be prepared to deal with the issue as soon as you become aware of it, or you could face legal risks and damage to workforce morale and relations. This means taking a considered approach, ensuring you are not treating the employee unfairly while upholding your workplace conduct standards and protecting your organisation’s interests.

In this guide for employers, we outline how best to set behaviour expectations with your workforce and what rules and processes you should have in place to deal with cases of employees accessing porn at work.

What does the law say about employees watching explicit material at work?

There is technically no legal prohibition against watching porn at work in the UK. However, it is likely to constitute an infringement of specific workplace rules relating to misconduct and sexual harassment.

Misconduct

Watching porn at work when it infringes on company time or using company devices or internet, would usually be stated as gross misconduct under an organisation’s conduct and IT policies, meaning the employee may be dismissed without notice as a result.

Sexual harassment

As an employer, you have a duty of care to ensure that your employees are not subject to sexual harassment.

Under ACAS guidance, displaying or sharing pornographic material in the workplace is a clear example of sexual harassment. The Equality Act 2010 defines sexual harassment as behaviour that is: “of a sexual nature which violates the employee’s dignity, or creates a degrading or humiliating environment.”

Therefore, if an employee is caught accessing pornography while at work or sharing it at work, depending on the circumstances, complaints of sexual harassment could follow if the misconduct is not dealt with in a timely and proper way. The employer may then be held vicariously liable for such claims.

If an employer is facing a sexual harassment claim due to another employee watching porn, the tribunal will look at the employer’s actions before the incident took place; the employer will have to show that they took “all reasonable steps” to prevent the incident from occurring. This includes in large part having “clear and well-publicised policies” that are kept up to date.

Employee rights & employer obligations

While most employers won’t want to monitor their employees too heavily or regulate what they do, it is advisable to have policies and rules in place stating the expectations and consequences of accessing pornography in the workplace.

Some employees may be mistaken in believing they are owed total privacy regarding their activity on work devices like laptops and mobile phones. However, employers should state in their company IT policy that they are entitled to access any communication, incoming or outgoing, or any activity on a work device, including any websites the employee has visited.

In the event of any allegations, you should be able to rely on the company policy to access the employee’s IT activity and records as part of the investigation.

Best practice advice for employers

Use of company policies

Your company IT and conduct policies should explicitly state that accessing porn at work is a gross misconduct issue, whether on workplace or personal devices. This should include any behaviour regarding pornographic content at work, for example, watching, downloading, or sharing pornographic images.

When employees possess work devices like mobile phones or laptops, it should also be made clear that the conduct doesn’t have to occur during work hours to classify as gross misconduct. With the increase of people working from home, so are the chances of people accessing porn on their work devices outside of working hours.

You should also have a robust IT policy that lays out that employees should not have an expectation of privacy when it comes to work emails or content downloaded onto work devices. The more robust your company policy is regarding pornography in the workplace, the better the chance you’ll have to defend yourself if a claim is brought against you.

You should also make sure that you regularly update your company’s policy to keep pace with changing technologies. You should ensure there are no loopholes in your policies that your employees could take advantage of if they are caught watching porn at work, such as sharing images through new platforms (eg WhatsApp).

Communicate your policies to employees

There’s no point in having a comprehensive company policy that employees aren’t aware of or know where to find. You should make your employees aware of the key points of the conduct and IT policies during the onboarding and training process.

The policy should also be easily and readily accessible to all employees. For example, it should be clearly accessed through the intranet. You should also take steps to make sure employees are informed of any changes or updates to the company policy.

Deliver training

Training your employees on acceptable behaviour on work devices reduces the likelihood of employees accessing explicit content since they are fully aware of the consequences of doing so. Employees could have incorrect ideas about the degree of privacy they’re owed, so this will ensure they are fully aware of their rights as well as their employer’s rights.

Regular training will also ensure your employees are aware of any updates in the company’s conduct or IT policy.

Line managers should also be trained on how to deal with misconduct issues in a way that upholds workforce behavioural standards while reducing the organisation’s exposure to tribunal claims.

What should you do if an employee is found to have been watching porn at work?

An employee watching porn at work would be considered misconduct and in most cases is likely to amount to breach of company policy and gross misconduct leading to a dismissal.

Even if an employee is watching porn at home on a work device, the images or video could easily be shared by accident or fall into the wrong hands. For example, say the employee has to have their device seen by IT, and someone in that team finds the inappropriate content. It’s very possible that a person could be offended by the images and bring a claim for sexual harassment. Or a wrong attachment could be sent in an email. Just because the images aren’t shared deliberately doesn’t mean they don’t fall into the category of sexual harassment.

How you deal with an employee watching or accessing porn at work will depend on your company policies and procedures.

The clearer you lay out your rules regarding this issue, the easier the disciplinary process will be. When there is a suspicion or allegations of an employee watching porn at work, you should make sure to follow a proper procedure.

Taking disciplinary action for watching porn at work

While there should be a reasonable degree of trust between employers and employees, if you are alerted or become aware of the possible use of pornography at work, you have to take action.

The first step should be to follow a lawful disciplinary procedure before deciding on any disciplinary consequences.

Employees have certain rights when it comes to disciplinary procedures. If a fair and correct process is not followed, the employee could bring a claim against you.

You shouldn’t come to any hasty decisions. Firing an employee on the spot following the incident is not the correct thing to do. You should still follow your company’s policy and procedure even if there is clear evidence of the employee’s conduct. You should ensure that a full investigation and disciplinary hearing have taken place before taking steps like terminating the employee.

Conduct a full investigation

The investigation should establish the full facts of the situation. ou must make sure that there is an investigation and disciplinary hearing to adhere here to the ACAS Code of Practice. If you dismiss someone without conducting a full investigation, you could face a claim for unfair dismissal.

During your investigation, you should interview the people involved to have a full account of what happened and collect enough evidence.

If you have proof of the use of pornography, like an email or downloaded content, it will be quite easy to show the reason for the dismissal. However, if you don’t have this, it will be harder to show that the employee has acted inappropriately. Therefore, you may need to interview more people who may be able to provide information on the matter.

You would also usually inspect the employee’s company devices and internet activity during working hours.

You may also wish to suspend the employee on full pay while the investigation is taking place. However, make sure that the suspension only lasts as long as necessary. Keeping the employee off work for too long could be considered unfair and lead to a claim. You should also be aware, and make the employee aware, that the suspension is not disciplinary action, but instead is required for the investigation to be conducted thoroughly and fairly.

You also need to inform the employee in writing of the investigation. Your written notice should include information such as:

• Inform the employee of the conduct they’re being accused of
• Inform the employee of the potential sanction
• Inform the employee of when the hearing will take place
• Inform the employee that they have the right to be accompanied by a colleague or a trade union representative
• Inform them of any documents that will be used in the upcoming hearing and send copies

You should also make sure that sufficient notice is given. With such a serious allegation, ensure the employee has plenty of time.

Hold a disciplinary hearing

The investigation should be followed by a hearing, which the employee should have sufficient notice about. You should also give them reasonable time to prepare for the meeting and provide them with a copy of the evidence and witness statements.

It’s also important to note that you should make the employee aware of the fact they are allowed to be accompanied at the meeting and they should be given the opportunity to respond to the allegations and evidence.

The individual responsible for making the decision may determine the outcome at the end of the hearing or they may take time to come to consider all of the evidence and the information given by the employee during the hearing. The decision should be given or confirmed to the employee in writing. In this notice, you should explain the full findings of the situation, the disciplinary action being taken against the employee, and inform the employee of their right to appeal the decision.

Make an informed decision

Depending on the outcome of the investigation, it may be appropriate to give the employee a written warning. If the employee’s conduct was severe enough to harm other employees, it could be enough to justify terminating the employee’s contract.

Appeal process

The employee has the right to appeal the decision following the disciplinary hearing. If this happens, the appeal should be considered by a different manager if possible. Another disciplinary hearing should take place.

If the employee is still not happy with the outcome of the decision, they may consider taking the case to the employment tribunal. However, if the employee has been treated fairly and reasonably throughout the process, the chances of it reaching this stage are much less likely.

Watching porn at work FAQs

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Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.