Disciplinary action over personal use of the internet

An employee who was fired for excessive personal phone and email use has been reinstated on an interim basis, because the evidence suggests that other employees were not dealt with in the same way for similar use, and the process followed by the employer may not have been fair.

The employee had received a previous warning for excessive personal calls and emails some years previously that had expired*, plus several more recent concerns raised (without any formal process).

The Employment Relations Authority was concerned that the data collected by the employer to show the alleged breaches was too old, and that 20 other employees had higher personal use than the employee dismissed.

It is very important that the information an employer uses to justify disciplinary action is:

1. Recent – it cannot be stored up for later use; and
2. Accurate – it must be carefully looked at to ensure it is correct.

The employer must also be consistent in their treatment of employees. If several are breaching policies on telephone, email, or internet use then all need to be investigated and dealt with appropriately. The outcomes can differ due to the amount of use and previous warnings, but the policies need to be consistently applied.

Employers should have clear policies and enforce those. If not, then they run the risk of not being able to act when they want to. If you need help with your internet/phone policies or to know what to do when you suspect a breach, please give Alan Knowsley a call.

*A Disciplinary warning does not last forever and will expire if a date is specified (e.g. 12 months) or when ever a sufficient period has passed that means it would not be fair to continue having the warning hanging over the employee. The length of time will depend on the circumstances and particularly the type of behaviour eg a warning for a physical assault will generally last longer than one for swearing.