Settlement Agreements and Privacy

At what point does work communication end and private communication begin. Employees may be fairly dismissed for breaching a company’s computer, email or internet usage policy. The fact that any communication was intended to be private is a limited and often unsuccessful defence to any alleged wrong doing.

There are potentially very serious consequences for engaging in ‘banter’ when using work or private emails at work. As well as breaching an employers email and computer usage policy, it does not take much for a few emails to get forwarded before an employer is dealing with a national tabloid headline scandal and the employees are facing permanent reputational damage.

Headlines have been awash lately with the revelation that the Premier League’s Chief Executive, Richard Scudamore, has been involved in exchanging sexist and offensive emails with colleagues and a longstanding friend who is a lawyer.

Mr Scudamore confirmed that he sent and received the emails, which included crude slang references to women, ‘jokes’ about female irrationality and suggestive comments about a female colleague.

The former temporary secretary of Richard Scudamore received private emails, which she claims she had access to in order to organise his diary, in which the offensive emails were sent. The secretary brought to the media’s attention the wrong doing acting as a whistle blower and a potential victim of harassment.

Unintentionally, the Premier League potentially left themselves vulnerable to a claim of “sexual harassment”. Sexual harassment occurs where one employee subjects another to “unwanted behaviour which is of a sexual nature and which has the purpose or effect of violating the other’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment”. Prima facie, the content of the emails fall within this definition. The law on harassment focuses on the effect of a harasser’s conduct, not its purpose or intention.

Irrespective of whether the puerile nature of the comments were sufficiently serious for Richard Scudamore to be faced with allegations of gross misconduct, where an employer suspects an employee of misconduct involving electronic communications, it needs to substantiate its suspicion by carrying out an investigation and gathering evidence before confronting the employee as with other types of misconduct. It is possible that the conduct was sufficiently serious to warrant gross misconduct charges for bringing the organisation (the Premier League) into disrepute, as well as being in breach of its equal opportunities policy. In those circumstances, a settlement agreement would serve little purpose.

If you feel like you have been confronted with sexist or behaviour that may be defined as harassment in the course of your employment, please do not hesitate to get in contact.

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