News
Offensive emails - in the eye of the beholder?
First published in The Independent, 1 August 2007.
Most people have probably been in the embarrassing position of telling a joke which simply falls flat.
You might have heard a joke from a friend - or on TV - which, in its own context, seemed funny. But, when repeated in front of a fresh group of people, the humour is simply lost.
Anyone who has been in this situation will attest to the horrible sinking feeling that one gets in one's stomach upon the resulting social embarrassment.
Picture then, how you would feel if you forwarded an email to your boss, thinking it funny - but only to find out that any humour in it was simply not appreciated.
And then imagine the gut wrenching experience of being subjected to a disciplinary investigation - because your attempt at humour was said to be inappropriate, and in breach of the company's internet policy.
This scenario eventuated for the employee in Wood v Arthur D Riley & Co Limited (Unreported, Employment Relations Authority, Wellington, 9 July 2007).
Wood, an administrative assistant, worked at an electricity and water metering business. Her employer required all its employees to adhere to an email and internet policy which, amongst other things, prohibited the downloading and transmission of "offensive or inappropriate" material. The company retained discretion to determine whether particular material was in breach of this part of the policy.
Wood had fallen foul of the company's policy before. She had been warned for the high number of "joke" emails that she forwarded, and for including "questionable content". She had also been warned about her high number of personal phone calls.
But things really came to a head in August 2006 after Wood received an email from her father - sent from his workplace - with the subject line "11 most hot people!!!" The email contained a number of images of adult men and women, some of whom had little clothing or were naked.
One image was possibly (though not clearly) a person wearing a gas mask while enclosed in a translucent, stretch material. Others were of obese individuals whom the Authority amusingly described as not being "[rivals] to Michelangelo's "David" or of any other classical image of the human male or female form".
The images were intended to shock and ridicule - which was confirmed by the message that Wood attached when she forwarded the email to two colleagues - "Ewwww".
Upon discovering the email, the company was none too impressed with Wood. It alleged that her email contained offensive material, and required her to attend a disciplinary meeting. The company subsequently concluded that Wood had acted in breach of the internet and email policy, and dismissed her.
Wood challenged the dismissal by way of a claim to the Employment Relations Authority. The Authority concluded that the dismissal had been unjustified.
Central to the Authority's reasoning was a conclusion that, on an objective analysis, a fair and reasonable employer would not have concluded that the content of the emails was objectionable or offensive. The Authority criticised the employer for imposing personal views about the content of the emails - and took issue with the employer's claims that the emails might have been offensive (for example) because they might have offended obese people.
Further, the Authority said that it was difficult to see how the company could have identified any risk to public good - or to any other measurable concern open to a fair and reasonable employer.
The Authority ordered the company to pay Wood lost wages, and compensation for distress of $12,000. Curiously, these amounts were reduced by 25% in recognition of Wood's contribution to the situation which had led to her demise.
This case illustrates one of the inherent difficulties in this area.
Wood's email was not work-related. Its content was, on any view, questionable - and her judgement in forwarding it could be criticised. But whether it was in breach of the company's relevant policy was another matter. Further, even if it was, a subsequent issue was whether Wood's transgression justified her dismissal.
In many cases, the content of imprudent email correspondence can be readily judged inappropriate - and justifying of disciplinary action. Hardcore pornography, hate mail or content which is subversive or undermining to the employment relationship will almost always justify some form of disciplinary response.
But images which are intended to evoke humour can present more difficult issues. Is it simply a case of an employee with a different sense of humour to the employer? And can the employer's sense of appropriateness be criticised - on an objective basis - for being too puritanical?
While there are no easy answers in cases of this type, employers would be well advised to seek some sort of objective support for their decision-making - before deciding that an employee's sense of humour was egregiously misplaced.
