Sacking over 'excessive' internet use held to be unfair

A Glasgow Employment Tribunal has awarded nearly £40k to an employee who was dismissed due to ‘excessive’ use of the internet at work. In this article we consider the use of evidence and investigations in a disciplinary process and ways employers can enforce their email and internet policies.

In this current case, Mr Innes was an accountant working for Scottish and Southern Energy. Despite a previous warning about his internet use, he was dismissed for a “failure to perform his duties” as a result of spending a “ridiculous amount of time” surfing the internet during office hours. During the disciplinary process, he was alleged to have made more than 27,000 visits to non work related websites. During the disciplinary process, the employer submitted as evidence to Mr Innes a report it had obtained from its IT Department which, the employer said, was evidence of his excessive internet use. David Pratt, the Disciplinary Officer, who obtained the report on Mr Innes’ internet usage, stated that “[Mr Innes] was well aware that sitting at his desk doing nothing whilst going on the internet was wrong”.

But tribunal chairman said Mr Pratt had "no idea" how to properly interpret the report. He said, "He made no attempt to obtain advice from the respondent's IT department," and "His view was essentially that he was faced with this enormous report and this therefore showed an extraordinary amount of internet usage." The Tribunal also felt that "There was clearly a degree of exasperation with the claimant amongst the managers". It appears that Mr Innes had had some difficulties at work following bereavement, although he had not pleaded disability discrimination.

The Tribunal held, unanimously, that the dismissal was unfair and awarded Mr Innes compensation of £38,608.

The importance of policies and procedures

It is vital that employers have clear, user-friendly email and internet usage policies. Ensure staff are fully aware of the policies and receive thorough training on compliance and the consequences of failing to comply. Send the policy round as an email attachment and keep a record and read/receipts.

In a fair disciplinary process the stages of investigation, disciplinary and appeal should be clearly set out from the beginning with appropriate personnel heading each. It is also good practice to ensure an appeal is offered as an opportunity to review procedures to ensure fairness has been achieved.

If you suspect an employee to be misusing the internet or email system, gathering the necessary evidence is key in showing the reason for any subsequent dismissal was fair. It is also important that disciplining officers do not simply accept evidence but seek to question or challenge it. In this case, simply putting a long and detailed report to the employee was not enough, the disciplining officer needed to understand the report and ask questions of it with IT. It is also important to ensure the employee understood the evidence, particularly so where the employee has an underlying medical condition.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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