Accessing porn during working hours

MP shocker

At the end of April 2022 a female MP claimed that a male colleague had been brazenly watching pornography on his mobile phone whilst working next to her in the House of Commons. When the report first broke, there were many calls for the MP to resign over his inappropriate behaviour which he later did.

Act of gross misconduct?

Whilst this is the first time such an allegation has been levelled at an MP, what if one of your employees was observed by a colleague watching porn at work? Would this automatically be gross misconduct giving you grounds for their summary dismissal?

The answer is that it will depend on several factors. The first is whether the employee knew that you would deem accessing porn during working hours a gross misconduct offence and what the consequences would be, i.e. summary dismissal. Ideally, this should be set out in both a list of gross misconduct offences (click here ) and an email and internet policy (click here ).

Who’s device and when?

Our policy states that you will deem the “logging on to sexually explicit websites, downloading or circulating pornographic or other offensive, illegal or obscene material... (including from the employee’s home computer in their own time)” a gross misconduct offence.

This wording can cover the accessing of porn via work and personal mobile devices too.

In working time

The next point to consider is when the employee undertook the activity. If it was during their normal working hours, then there would clearly be a breach of your policy.

If it’s during a break, the position isn’t so clear cut (unless the employee’s actions were observed by a colleague who found their behaviour offensive).

From home

You’ve no right to take any disciplinary action against an employee who’s accessed porn at home from a personal device during non-working hours. The only exception here would be if the employee committed a criminal offence whilst undertaking this activity and it affected your reputation or their ability to do their job.

Potential defences

Finally, you need to determine if the employee’s activities were deliberate or accidental. Some rogue websites will redirect to adult content without the user’s consent. If this is raised as a potential defence, it must be taken into account.

Tip. If you don’t have a policy that states the accessing of porn will be deemed a gross misconduct offence, it doesn’t mean that you can’t take any action if this is discovered, but it will be much harder to dismiss the employee for it.