The assignment – a case study:
Case Study Required: Answer ALL of the following.
A. Infinity Ltd is a large multinational manufacturing company. Dakota works in the IT Department of Infinity Ltd as a computer programmer. She has been working in the same position for the past 15 years. Although her performance reviews have been consistently good, she has never been promoted.
Following her return to work after giving birth to her third child, she questioned her manager about potential promotion opportunities. Her manager informed her that he had not considered her suitable for promotion as she has spent too much time on maternity leave in the past few years. After this meeting with her manager she made a complaint to Infinity Ltd’s HR Department.
Following this complaint her manager started giving Dakota unrealistic deadlines. Because she was unable to meet them she was given a does not meet expectations rating in her latest performance appraisal. When she queried this rating the manager told Dakota that he believes if she spent less time having babies and more time focusing on her work that her performance would vastly improve.
Dakota was extremely upset following this meeting and the next day she failed to attend work. She has submitted a medical certificate to the HR department, which states that her absence is a consequence of occupational stress. Following receipt of this medical certificate the HR Manager of Infinity Ltd contacted Dakota. Dakota told the HR Manager that she did not feel that she could return to her position, and that she felt very let down by Infinity Ltd as no action was taken following her original complaint.
Required:
Critically evaluate ALL of the legal issues that arise in relation to Dakota. Your answer should address the potential liability that Infinity Ltd is exposed to in this situation, and any actions that Infinity Ltd can undertake now to mitigate their potential liability. In addition, your answer should examine the procedure that should have been adopted by Infinity Ltd following Dakota’s original complaint.
B. Infinity Ltd has also been contacted recently by the police and informed that one of their employees was arrested following the purchase of an illegal firearm. This firearm was purchased online from an IP address owned by Infinity Ltd and traced back to the employee. Infinity Ltd was unaware of this matter as they do not monitor their employee’s internet and email use. Infinity Ltd is now considering introducing and Internet and Email Usage Policy.
Required:
(1) Analyse the potentially liability that an employer may be exposed to arising from an employee’s internet and email abuse.
(2) In light of this analysis advise Infinity Ltd as to the actions it should take to effect the implementation of an Internet and Email Usage Policy.
The Employment Equality Acts 1998-2015 prohibit pregnancy related discrimination in Ireland. These acts promote equality and prohibit discrimination across nine grounds: gender, religion, civil status, age, family status, disability, sexual orientation, race and membership of the Traveller community. The acts define discrimination as the treatment of a person in a less favourable way than another person is, has been or would be treated in a comparable situation on any of the nine grounds.
Infinity Ltd did not follow up on a complaint made by Dakota to Infinity Ltd’s HR Department after being informed by her manager that she had not been considered suitable for promotion as ‘she has spent too much time on maternity leave’ and following this she was given unrealistic deadlines by her manager and as a result of not meeting these she received a ‘does not meet expectations’ rating. After questioning this rating her manager commented that he believes she is not focussing on her work due to her having too many babies. Consequently Dakota failed to attend work and submitted a medical certificate stating her suffering from occupational stress. Being contacted by her HR Manager Dakota said that she considers resigning as she does not feel able to return to her position and in particular expressed her disappointment on no action been taken on her original complaint.
Infinity Ltd could be liable for discriminating Dakota on the grounds of gender by reason of her maternity leave regarding access to promotion contrary to sections 6 (2)(a) and 8(1)(d) of the Employment Equality Acts 1998-2015.
In line with continuous jurisdiction[1] [2] it is to support that due to the fact that pregnancy is a uniquely female condition[3], any less favourable treatment and/or victimisation on grounds of pregnancy constitutes direct discrimination on grounds of gender[4]. Hence Dakota, having not been considered for promotion due to pregnancy and the following maternity leave, has been discriminated by Infinity Ltd through her manager based on her gender.
Contrary to sections 14 (b) in conjunction with part VII section 74 (2)(a) of the Employment Equality Acts 1998-2015 Infinity Ltd could be liable for victimisation[5] [6] with regards to Dakota’s manager giving her unrealistic deadlines and as a consequence giving her a ‘does not meet expectations’ rating penalising Dakota for the complaint she made to Infinity Ltd’s HR department.
Infinity Ltd could furthermore be liable for harassment and workplace bullying by the means of victimisation and penalisation. Harassment is defined in section 14A (7) of the Employment Equality Act as “any form of unwanted conduct related to any of the discriminatory grounds, […] which […] has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”. Bullying that is not linked to one of the discriminatory grounds is not covered by the Employment Equality Act and though there is no statutory definition of bullying, paragraph 5 of the Code of Practice Detailing Procedures for Addressing Bullying in The Workplace[7] defines workplace bullying as follows:
Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.
Imposing unrealistic deadlines on Dakota and continuous comments about Dakota’s past pregnancies and the assumption that ‘if she spent less time having babies’ she could vastly improve her performance could be regarded inappropriate behaviour undermining Dakota’s right to dignity at work and therefore may satisfy the element of harassment, however, if two occurrences of remarks on Dakota’s maternity could already constitute a repeated inappropriate behaviour which is required for the element of workplace bullying will need to be decided on.
A liability of Infinity Ltd for constructive dismissal could result from their behaviour towards Dakota which determined her resigning. Generally an employee who resigns from their position deprives himself of the right to make a claim for redundancy or other payments, however, following section 1(1)(a) of the Unfair Dismissals Act 1977 an employee may succeed in a claim for unfair dismissal in circumstances where the employee resigns the employment as a result of the employer’s conduct towards the employee (Sheehan, 2014, p. 149) and hence this unfair dismissal occurs constructively.
Following prevailing case law[8] [9] Dakota might allege that she had been constructively dismissed whereas she could claim that that she (1) had been discriminated at work regarding access to promotion on the grounds of her pregnancy, (2) that she had been subject to harassment and bullying at work with ongoing comments about her repeated maternity leaves, and (3) that Infinity Ltd, by giving her unrealistic deadlines, not only undermined her confidence and her health in that way that she had to seek medical attendance for occupational stress, but furthermore created a work climate that left her no choice but to terminate her employment.
There may be more liabilities that Infinity Ltd might have to face for which the scope of this work does not provide the space as for instance their obligation to take action on Dakota’s absence due to occupational stress.
Infinity Ltd’s possibilities to mitigate their potential liability strongly depend on Dakota’s actions following the threat of her resignation. If Dakota files a complaint with the Workplace Relations Commission Infinity Ltd may be able to mediate a resolution to the issues in dispute through the Early Resolution Service or the Workplace Mediation Service, however, Infinity Ltd will need to make concessions as they want to avoid further legal actions from Dakota. Obviously they will need to take full vicarious responsibility for Dakota’s manager’s actions. Dakota’s original complaint must be dealt with in a proper way now and disciplinary actions must be imposed on her manager. Dakota’s access to promotion and her wrongful performance-ratings must be reviewed. Probably Infinity Ltd needs to agree to consider Dakota for the next available promotion and her actual position needs to be adjusted so that she does not need to work together with her current manager anymore.
If an agreement between Dakota and Infinity Ltd cannot be reached through the ERS and the WMS and Dakota proceeds with her complaint Infinity Ltd’s options of mitigating their liability are considerably diminished. Infinity Ltd may plead that Dakota had resigned without just cause and had failed to attempt to resolve matters internally before her resignation, however this objection might fail as Dakota reasonably, since no action at all was taking on her original complaint, could have no confidence in her employer to either properly or effectively address her grievances.
As gender was a motivating part in Dakota’s manager’s decision Infinity Ltd will fail in claiming that the same decision would have been made without Dakota’s maternity playing such a role. The existence of an effective anti-discrimination policy in place may show Infinity Ltd’s good faith efforts to comply with regulation, however, it will not protect Infinity Ltd from the vicarious liability for the discriminatory employment decisions of Dakota’s manager especially as the manager’s actions following Dakota’s complaint, unrealistic deadlines and low performance rating, might be considered retaliatory.
At the very first Infinity Ltd’s HR manager should have double-checked if there is an appropriate anti-discrimination policy in place. If that was not the case the development of such a policy should have been initiated immediately.
Following Dakota’s original complaint to Infinity Ltd’s HR Department they should have initiated the conduct of a prompt, thorough and impartial investigation of the complaint as necessary and appropriate within a proper timeframe.
The investigation should have included interviews with all involved, Dakota and her manager, and potentially any third persons who may have information regarding the incident. The investigator should also have reviewed relevant documents such as Dakota’s previous employment record and past performance ratings to investigate into her suitability for promotions she was never considered for.
Presuming the investigation would have concluded that a violation of Dakota’s rights occurred, prompt and appropriate remedial action, including disciplinary action against Dakota’s manager should have been induced. These actions should have included reprimand, verbal counselling, training, censure, and a written letter of warning announcing the possibility of dismissal in the case of recurrence.
Furthermore Dakota’s manager should have been removed from his position as he apparently is not capable of holding a senior position managing people in the firm. He should have been offered a less senior position without the burden of supervising other employees. His future behaviour within the company should be closely monitored to ensure he observes existing and future policies.
Follow-up interviews with Dakota and her, then former manager, should have been scheduled to ensure that remedial and/or disciplinary steps are completed and no further discrimination or harassment occurs in the work environment as any kind of retaliation, victimisation or penalisation must be deemed unacceptable and must entail further disciplinary action.
Though the benefits gained from giving employees internet access may be numerous this occasionally leads to abuse which there are plenty of ways of doing so: playing online poker at work or excessively using social media websites are only the harmless examples, viewing pornography at work, posting threats and disparaging comments online, illegal file sharing, hacking and illegally accessing databases are the more serious things that may have legal consequences, even for the employer.
The Irish Employment Equality Act[10] provides that an employer is vicariously liable for anything done by an employee while in employment irregardless of the employer’s knowledge or approval. In a number of cases employers have been found liable for actions of employees[11] [12] for instance when employees’ actions had unfavourably affected colleagues at work while the most common reasons for recent lawsuits concerned discrimination of co-workers, harassment[13] – sexual and racial – and threats of violence[14]. Any of these may help constituting proof of a ‘hostile working environment’ for which the employer could be held liable if no appropriate measures are taken.
More liabilities may arise for instance from:
Ø Copyright infringements – copying and distributing someone else's work without their consent through the company email systems;
Ø Trade secret disclosures – sending company secrets to competitors;
Ø Security law violations – spreading (mis-)information about a company with the goal of moving the stock price up or down and the firm could be held liable for stock price manipulation;
Ø Defamation – when an employee sends emails using their work email address the recipient may infer that the company endorses the material contained within the email and therefore it is important, as the boundaries between opinion and defamation are confusingly thin, to discourage the personal use of the company's name by employees even in chat rooms or newsgroups as this could bring the danger of a defamation lawsuits against the firm.
‘Respondeat superior’ is the legal term for the vicarious liability of an employer for their employees’ actions. Historically an employer was only liable for workers’ actions while at work, however, development in recent years was that the simple provision of an opportunity to cause harm may be burdened onto the employer. Therefor it is necessary that employers protect themselves from liability resulting of employees’ internet and email misuse at work. The easiest, simplest and cheapest measure to do that is the implementation of an appropriate policy on internet and email usage at work because if such a policy is not in place employees cannot be expected to know what behaviour is deemed inappropriate of the organisation[15]. But alone having such a policy in place is not enough if it is not enforced by regularly monitoring and auditing internet access or easier, restricting the websites that can be viewed in the workplace by employing a web filter. Controlling email use is as important but is much more difficult as message content can hardly be efficiently monitored but it is possible to restrict certain file types to be sent outside the company.
Assuming Infinity Ltd’s employee would have, following the purchase of the illegal firearm, used this to threaten colleagues at work, a liability of Infinity Ltd could indeed appear quite conceivable.
There are several reasons that organisations may have to implement email and internet usage policies:
Ø Productivity – Employees using internet and email for private purposes, is obviously not performing the function for which he is paid while at the same time he is using valuable company resources for its prescribed purpose while at the same time this may result in loss of productivity for those using the internet for its proper purpose.
Ø Security – On the one hand companies may deal with confidential information which must not be made available via the internet and on the other hand downloading from the web can inadvertently lead to viruses that may cripple the company's systems which may lead to legal ramifications for not protecting customer information.
Ø Communications – Proper email usage policies may improve efficiency using archiving methods which allows easy access to older communications and as well allows for easy auditing. In addition, email exclusively used for business purposes does not need to be sorted and eases monitoring processes as the company does not run the risk to violate the employee’s privacy rights when auditing and monitoring business emails.
Most important for Infinity Ltd when introducing an Internet and Email Usage Policy[16] will be the distribution of the new policy to all employees as only this facilitates the company to seek recourse in the event of violation[17]. Effectively communicating the policy includes cross-referring to employment contracts and making it clear in the contracts that policy breaches will constitute disciplinary matters up to and including dismissal. Upon commencement a copy of the policy (or access) must be provided and an acknowledgement slip confirming ‘receipt and understanding’ of the policy should be signed.
A good internet and email usage policy should exactly define (giving examples) what ‘acceptable use’ is and state that personal use must be limited to minimum while reminding employees that information on the internet is available for anyone to see and therefore sending an email may be considered like sending a postcard to the whole world.
When defining ‘misuse’ it should elaborately be expressed that this could be any communication – in and outside working hours – that may damage the employer’s reputation. It should also be emphasised that ‘misuse’ also includes any social networking, blogging, online shopping, internet gaming and gambling. Possible disciplinary consequences should be outlined referring to disciplinary policies.
Employees should be advised that they must notify HR and/or IT when receiving any offensive material by email and that the material must be deleted and under no circumstances must be forwarded or retained. Reminding employees that deleting an email does not make it untraceable and cross-referencing to bullying, harassment, equality and data protection policies may be useful within this context.
Following the above steps in implementing the policy and afterwards monitoring and enforcing it should take the liability for employees’ internet misuse from Infinity Ltd and it will be likely the employee to be found liable.
[1] Dekker v Stichting Vormingscentrum voor Jong Volwassenen C-177/88 [1990] ECR 1-3941
[2] Webb v EMO Air Cargo (UK) Ltd. [1994] ECR 1-04185, where the ECJ ruled that the dismissal of a woman on grounds of pregnancy is direct discrimination contrary to Directive 76/207.
[3] Brown v Rentokil Ltd. C-394/96 [1998] IRLR 445, where a female was dismissed from employment on the basis of absence due to incapacity for work resulting from her pregnancy which constituted direct discrimination on grounds of sex as it can affect only women.
[4] O’Brien v Persian Properties t/a O’Callaghan Hotels [2012] 23 E.L.R. 211, where the claimant’s employment had been terminated while she was on maternity leave which the tribunal considered a discriminatory dismissal on the grounds of gender.
[5] Female Teacher v Board of Management of a Secondary School [2013] 24 E.L.R. 16, where the complainant was dismissed as a result of harassment complaints she made which the tribunal considered victimisation
[6] Batt v Palmece Ltd t/a Comfort Inn [2010] DEC-E2010-126, where the tribunal found that the respondent had victimised the complainant when she was put under pressure to waive her legal rights and blamed for communication difficulties at a time when she was seriously ill from a pregnancy-related condition.
[7] Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (S.I. No. 17/2002)
[8] Liz Allen v. Independent Newspapers (Ireland) Ltd [2002] 13 E.L.R. 84, where substantial damages were awarded to the plaintiff for personal injuries, loss and inconvenience caused by the alleged negligence of her former employer.
[9] Louise Hannon v First Direct Logistics Limited [2011] DEC-E2011-066, where a transgender employee alleged that since informing her employer of her true identity her working conditions were made so intolerable that she was forced to resign,
[10] Section 15, Employment Equality Act, 1998
[11] Williams v Morrissey [1903] 37 I.L.T.R 65, where the employer was held liable for his employee throwing a stone while driving a cow along some streets in order to prevent the cow from taking a wrong turning, which stone hit a passer-by.
[12] Lister v Hesley Hall Ltd [2001] UKHL 22, where the employer was held liable for a school warden’s sexual abuse.
[13] Atkinson v Carthy and Others [2005] ELR 1, where an employee had been subjected to sexual harassment by the employer’s accountant over a long period of time. She did not make a formal complaint and argued that there was no complaints procedure in place to allow her to make such a complaint. The employer argued that he had an open-door policy regarding employee complaints. The employer was held liable due to their failure to have in place adequate procedures.
[14] Shanley v Sligo County Council [2001], where a fireman had been subjected to persistent bullying by a superior over a period of eight years and the council was held liable.
[15] Mehigan v Dyflin Publications Ltd. (UD 582/2001), where dismissal of an employee after disseminating pornographic images via his work email was found to be unfair because there was no policy in place.
[16] A proposal for Infinity Ltd’s new Internet and Email Usage Policy is attached in appendix 1.
[17] Mehigan v Dyflin Publications Ltd. (UD 582/2001)
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