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My employer wants to discipline me for forwarding an offensive email to my friend outside of work. What should I do?
Speak to your union rep as soon as possible if you have one. Also check what is in your company's electronic communications policy and any other relevant policies (e.g. anti-discrimination policies, bullying and harassment, dignity at work policies, etc.).
If your company doesn't have an electronic communications policy, or if your offence isn't mentioned in it, you may be able to argue that you did not know you were acting wrongly.
If the policy mentions 'unacceptable', 'inappropriate', or 'offensive' material, but doesn't define more closely what that constitutes, you may also be able to show that you were unaware of precisely what activities were not allowed. This only works within limits. For example some things, such as pornography, are obviously unacceptable.
Claiming that you were not aware of a policy will not be a defence if your company has advised you of its existence, or published it in an openly available staff handbook.
Disciplinary action over this kind of behaviour is increasingly common. If you have a union rep in your workplace, they can accompany you to a hearing and help you to put your case. You may find Acas' guidance on social media: discipline and grievances helpful.
Here are some of the factors that might make a difference to the outcome of any disciplinary:
- Your response – did you quickly accept that you were at fault for forwarding the email and apologise?
- How have others been treated in the past for this kind of behaviour? In general, your employer should act consistently. In particular, you may have been lulled into a false sense of security if your employer has tolerated this sort of behaviour by colleagues (or by you) in the past and has not communicated to you a clear change of position;
- What sort of job do you do? For example, are you in position of trust or a senior role?
- What does your organisation do? Is there a genuine risk of reputational damage? Remember that forwarded emails can quickly take on a life of their own and go ‘viral’.
- Who did you forward the email to?
- How offensive was the content?
- Was there a complaint?
- Is the content discriminatory (for example, sexist)? Could forwarding the email be viewed as harassment?
- What does your employer’s policy say about the rules and about the consequences of breaching them? Have you been reminded about the rules and warned of the risks?
- What did your employer do to make sure you knew about the policy?
- Do you have a clean disciplinary record?
- Do you have personal circumstances that you can point to, for example, stress at work, to explain why you suddenly did something ‘out of character’?
Of course, if you were using the web in a way which breaks the law (e.g. fraud, inciting racial hatred, etc.), no excuse is likely to help you and you may also face criminal proceedings, just as you would if you had done this from any other internet connection.
A particular downside of the Internet is that your web history can never be entirely deleted. There have been several recent worrying examples of employers dismissing employees after trawling through their web history to discover offensive postings. In one case involving a senior manager at Leeds football club, this was done to avoid making a large redundancy payout. These cases underline the importance of never using work email or the Internet to access or forward inappropriate material.
Also remember that the Internet does not have a sense of humour. Something that looks like a funny joke to be shared with a friend can look very different in the cold light of a disciplinary hearing.