Dealing with staff watching porn at work

Employers have a duty of care towards staff and ignoring this type of inappropriate behaviour is likely to end in a tribunal, says Daniel Zona

 

​The problem

 

Two members of our team, both female, have raised informal concerns about a male member of staff openly watching pornographic material on their mobile phone in the communal kitchen. They haven’t yet made a formal grievance, but they understandably find it upsetting. How should we respond and should we wait until a formal complaint is made? All three employees have worked for the employer for at least three years.

 

The law

 

The Equality Act 2010 prohibits discrimination or harassment on the basis of nine protected characteristics and prohibits harassment that is of a sexual nature.

 

Employers may have policies in place which prohibit watching offensive or pornographic material, regulate conduct in the workplace or otherwise prohibit the general misuse of company property. Employees may also have clauses in their employment contracts relating to their conduct and behaviour in the workplace, and the use of company property.

 

Expert advice

 

Any employer faced with the problem outlined above will need to consider the following.

 

The two female members of staff have informally raised concerns about a serious matter relating to the conduct of another member of staff in the workplace. Despite the fact a formal grievance has not yet been raised, the employer is aware of the matter and, given the nature of the conduct, they need to deal with it. A failure to do so could also be used as evidence in a tribunal claim that the employer has failed to put protections in place for staff, or indeed that they condone this sort of behaviour. This may prohibit them from arguing that this was the actions of a rogue employee and they shouldn’t bear any liability.

 

Given the nature of the material being watched by the male staff member, and subject to other relevant facts of the matter, it is possible that the two female staff might have a claim for sexual harassment. The concerns raised by the two female staff could also potentially amount to a protected disclosure.

 

If the employer deals with this matter swiftly, fairly and reasonably, it is unlikely that it will face further complaints from the two female staff, and it would likely avoid litigation.

 

However, if the employer fails to deal with the matter properly or treats the two female staff members unfairly, this could give rise to further complaints and could even give rise to legal claims for discrimination or detriments relating to their protected disclosures.

 

There is potential for a claim for sex discrimination, separate from sexual harassment, if the two female staff can demonstrate, for example, that they would have treated them differently if they weren’t female. If the employer’s failures in respect of the two female staff are so serious as to amount to a fundamental breach in their employment contract, and they resign in response to this breach, that could give rise to a claim for constructive unfair dismissal.

 

The employer should be mindful that it also owes a duty to the male member of staff. So when considering disciplinary action, they will need to undertake a fair and reasonable procedure to avoid any tribunal claims by the male staff member.

 

###To-do checklist

• Take allegations of this nature seriously and do not wait for a formal grievance before taking action.
• Employers should be careful not to allow the situation to deteriorate or to expose themselves to increased liability through the mismanagement of the matter or unfair treatment of the individuals involved.
• Do not treat an accused employee as de facto guilty, but ensure to follow a fair and reasonable procedure when investigating their conduct.

 

Beware

 

If the employer fails to deal with this matter properly and reasonably, it could be faced with costly tribunal claims from all three members of staff.

 

Daniel Zona is an associate in the employment law team at Collyer Bristow LLP