MOST employers will not spend too much time thinking about pornography, at least not so far as their staff are concerned.

After all, it's clearly gross misconduct to use company computers to look at pornography and any employee caught doing so deserves to be dismissed...surely that's right?

Well, it depends. There have been a couple of decisions which at first glance appear surprising. One of these involved an IBM employee, Mr Dunn, who was dismissed for accessing pornography on the Internet whilst at work. Although he admitted the charges against him, he nevertheless claimed that his dismissal was unfair. And surprisingly enough, he won. The tribunal took the view that Mr Dunn's conduct was not such that there was indisputably a breach of IBM's policies so as to warrant immediate dismissal. This must have come as quite a shock to his employers, who must have thought they were on pretty safe ground.

In another case, a tribunal observed that in the absence of a written policy describing the types of conduct that amounted to gross misconduct, using the Internet for downloading pornography - what the tribunal considered to be merely unauthorised use -would not normally justify instant dismissal.

The lesson to be learned is predictably clear. Employers need to spell it out for their staff. They need to make it clear what employees can and cannot do with their computers and what they can and cannot look at online. Generic words like "offensive" and "objectionable" should be avoided unless they are defined with some precision.

Make it clear that downloading pornography or other unwelcome material will be viewed as gross misconduct.

It is just as important to think about your rights to monitor Internet use; get this wrong and you run the risk of claims of unlawful interception and of breaches of the right to privacy. If possible, get employees to sign to confirm that they have read and agreed to abide by your rules on Internet use.

Stephen Elliott is a solicitor in the employment team of North-East law firm Ward Hadaway. He can be contacted on 0191-204 4000 or by email at

Published: 23/09/2003