News
Is pornography in the workplace a health and safety issue?
First published in the Independent, 21 November 2007
Thanks to new technology, pornography has enjoyed something of a renaissance over the last decade.
Once the stuff of seedy movie theatres and red light districts, pornographic material is now accessible - by those who desire it - through any number of different means.
One of these, of course, is the internet. In fact, depending on who you believe, the majority of internet traffic in the world apparently has some connection to pornography (except with teenagers, for who, believe or not, Facebook is apparently more popular!).
Most employers regard pornography in the workplace as inappropriate - and this includes employees who choose to access pornography by using the company's computer system.
There are a number of different considerations on this matter: there is, of course, a question of morality (ie this is the sort of thing that the company condones) and there is also a question of security - opening up the company's computer system to the evils of unsolicited "pop-ups" and email spam.
But can pornography be a health and safety issue?
Put another way, if an employee is unwillingly exposed to pornographic material in the workplace, can that worker claim that his or her safety has been compromised?
Based on a recent decision of the Employment Relations Authority, it appears that this could be the case.
The applicant in Williams v Dunedin City Ford (Unreported, Employment Relations Authority, Christchurch, 19 September 2007) was a sales representative at a car dealership in Dunedin. In June 2005, she observed a colleague viewing a pornographic image on her supervisor's computer.
Williams was shocked and upset by the image and reported the incident to her supervisor, who said that he would "deal with it". Eventually, the colleague gave Williams a three line apology and, in addition, there was an assurance that there would be no more pornography in the office.
Barely three days later, there was another incident involving pornography.
On this occasion the same colleague produced a hardcopy of a pornographic image and showed it to his supervisor. Williams protested to the supervisor about the incident.
It is obvious that Williams was upset about the two incidents. She took it upon herself to collect evidence of the existence of pornographic images in the workplace, principally by accessing her supervisor's computer. She also obtained a copy of the image which her colleague had brought into the office in hardcopy - which may have been by accessing his briefcase.
There followed a number of unfortunate incidents involving Williams which eventually led to leaving the workplace on long term sick leave. She was eventually dismissed on the grounds of serious incapacity.
The other matters that Williams referred to in her claim were significant - including an allegation of bullying, and one of sexual harassment.
Those other allegations were dismissed by the Authority. What it did take issue with, however, was the fact of Williams' exposure to pornography.
The Authority found that, after the first incident had been raised - and apparently dealt with by the employer - there was a heightened obligation upon the employer to deal appropriately with the second incident.
The Authority reached the conclusion that Williams was not provided with a safe and secure workplace "free of avoidable harm" as a consequence of the employer's failure to deal with the second pornographic issue.
In essence, the Authority found that Williams' safety at work was unreasonably breached by the production of the second pornographic image - particularly because it followed so closely upon the production of the first.
As a result, Williams succeeded in establishing that her employer had breached obligations owed to her - in respect of which she was awarded $10,000 (representing a conservative calculation of three months' lost salary) and $7,500 as compensation for distress.
On the basis of the Authority's determination, there is little doubt that Williams was exposed to material which was inappropriate in the context of her workplace. Further, the repetition of events in a relatively short timeframe undoubtedly exacerbated the issue for Williams and led the Authority to the conclusion that the employer had failed in duties owed to her.
But what is perhaps surprising is the extent of the award felt justifiable by the Authority in relation to these breaches. The breach of duty was so significant, in the Authority's view, that it justified significant awards of damages - both in terms of lost wages and compensation for distress.
This determination operates as a warning to employers of the consequences which may follow an incident of pornography in the workplace. An event such as this can result in a conclusion that a serious employment obligation has been breached.
Employers would be well advised to redouble their efforts to eliminate the presence of inappropriate and pornographic material from the workplace.
