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'Allo 'Allo 'Allo, what do we have here then?
There are only two types of people in the world: good people and bad people.
This is the lesson that my evidence lecturer used to give when he was trying to explain jury trials.
You see, we can't help it. As human beings, we either trust people, or we don't. And what makes us trust people is not always the easiest thing to work out.
If you are a member of a jury, you might be completely convinced by the evidence of a little old lady who tells you that the accused man certainly did not steal from his employer. Under cross-examination, however, if you are told that this little old lady has been convicted herself for an unrelated offence (such as lying on her tax return) you may be less inclined to believe her at all.
There is no logical correlation between these two things – but, as my evidence lecturer would say, once you are convinced that a witness is a "bad" person, you are less inclined to believe her about anything.
Employment law seems to work in a similar way.
By its nature, the employment relationship is one which is founded upon trust and confidence. If a person does something to bring this trust and confidence into question, the law says that an employer need not trust the employee in any future situation and may dismiss him or her.
Some examples are easy to rationalise. For instance, an employee who is caught stealing from an employer has poisoned the relationship of trust and confidence irretrievably.
But what about other things? In particular, what if the employee has been using his computer to access pornographic images at work? Does this mean that the employer can never trust him or her again?
The events of the last week have brought this question squarely into issue – on the front pages of almost every paper in the country. The Police Commissioner, Rob Robinson, announced that 330 Police employees (including some sworn officers) would be investigated for retaining or passing on inappropriate or objectionable images on the Police computer system.
So what does this mean? What is the likely outcome of these investigations?
From a legal perspective, there are probably two issues.
First, most workplaces have an internet and email policy which, amongst other things, is likely to emphasise that the organisation's computer system belongs to it – and is only to be used for work purposes.
A statement like this should make it clear to an employee that use of the system cannot be considered "private" (and, therefore, that no defence under privacy legislation can arise). Further, it should be a clear signal that if an employee uses the computer system for doing something that is not related to work, consequences could arise (particularly depending upon the nature and extent of departure).
So, unless your job requires you to look at pornographic images (perhaps unlikely, but not impossible, particularly in a police context), it should be blindingly obvious to you that you are not performing a work-related duty by opening or forwarding such pictures.
Secondly, there is an element of morality associated with a breach of policy such as this. For reasons which are not completely clear, New Zealand's employment law has inherently accepted that, by accessing or forwarding pornographic images, an employer is justified in concluding that the trust and confidence in the employment relationship has been irretrievably damaged.
The difficulties in the cases which have been decided to date have centred around proof (ie did the employee really access the material – or did someone else use his computer without him knowing?) and issues concerning the scope of wrongdoing (ie it is more difficult to dismiss for one instance, while multiple breaches or deliberate actions such as storing the data on a hard drive can make the decision to dismiss more readily defendable).
So, the issue for Commissioner Robinson is not necessarily straightforward. Each alleged breach must be investigated, each employee’s response (and explanation) considered, and then disciplinary action taken consistent with the degree of breach. For example, criminal offending (such as accessing child pornography) will most probably result in instant dismissal. At the other end of the scale, a single incident of inappropriate access would more probably be appropriately dealt with by way of a warning.
So how rife is this type of thing?
Surprisingly, it is probably more common than most employers think. Put in context, just over 3% of the Police workforce is being investigated at present. That percentage is probably not out of line with the general number of such "offenders" across all workplaces.
Anecdotally, computer forensics specialists tell us that a comprehensive audit of an average employee's computer system is likely to reveal breaches of internet and email policy by almost 80% of employees. This does not mean that all employees breach the policy all the time – but it does mean that breaches such as those being investigated by the Police are not entirely unusual in the context of the New Zealand workplace.
So what advice as a consequence of all of this?
If you are an employer, audit your system regularly. There may be more happening than you might think.
And if you are an employee, it's simple. To coin a Police phrase, If you go to work, and look at porn, you’re a Bloody Idiot.
