Charles Price
Friday 22nd September 2017
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PUBLISHED ARTICLES

Article 5
E-mail Snooping - When Can an Employer Monitor an Employee?

We are all aware how e-mail has revolutionised the workplace; allowing people to work with more speed and from remote locations. E-mails carry the legal force of a contract and are often used as evidence in court and tribunal proceedings. The emergence of e-mail brings with it huge benefits but also huge risks if not managed responsibly. The introduction of a robust e-mail policy can stave off the potential elephant traps (see http://www.hrzone.co.uk/cgi-bin/item.cgi?id=168084&d=101&dateformat=%o-%B) but often an employer will want to monitor an employee to make sure that systems are being protected and that the employee is not guilty of misconduct. The law on this subject is complicated but there are common threads running through the various sources.

Why a Employer Might Want to Access Employee E-mails
• E-mails have the same authority as any other communication to and from the organisation and have the same legal force as paper correspondence. binding contracts may be inadvertently created
• External e-mails should have disclaimers attached to guarantee privacy
• E-mails can be regarded as published information and defamation can occur
• A copy of an e-mails is left behind on deletion – they are not confidential, and can be read by anyone given sufficient levels of expertise
• defamation of colleagues or other parties (deliberate or otherwise) may occur.
• abrupt, inappropriate and unthinking use of language can lead to a bullying tone and possible offence to others. Employers can be held liable for harassment.

The Law
Various sources of law protect the e-mail user. I list a few of the sources below. One reoccurring theme amongst all of the statutes is that employees should be warned prior to having their emails monitored.

Human Rights Act 1998
This provides for the concept of privacy ¬ giving a 'right to respect for private and family life, home and correspondence'. The provision is directly enforceable against public sector employers, and all courts must now interpret existing legislation in relation to the Human Rights Act. In the case of, Halford v UK 1997 suggests that employees have a reasonable expectation of privacy in the workplace, and employers are recommended to provide workers with some means of making personal communications which are not subject to monitoring, for instance a staff telephone line or a system of sending private e-mails which will not be monitored.

Covert monitoring is likely to be unlawful unless undertaken for specific reasons as set out in the Regulation of Investigatory Powers Act 2000 and the Telecommunications (Lawful Business Practice)(Interception of Communications) Regulations 2000 (see below). Employers should make sure workers know of any monitoring or recording of correspondence (which includes e-mails, use of Internet, telephone calls, faxes and so on).
Regulation of Investigatory Powers Act 2000
This Act covers the extent to which organisations can monitor or record communications at the point at which they enter or are being sent within the employer's telecommunications system, and applies to public and private communication networks. It gives the sender or recipient of a communication the right of action for damages against the employer for the unlawful interception of communications.

There are two areas where monitoring is not unlawful. These are:
• where the employer reasonably believes that the sender and intended recipient have consented to the interception
• without consent, the employer may monitor in the following circumstances, as set out in the Telecommunications (Lawful Business Practice)(Interception of Communications) Regulations 2000. These include:

- to ensure compliance with regulatory practices eg Financial Services Authority requirements

- to ensure standards of service are maintained, eg in call centres

- to prevent or detect crime

- to protect the communications system ¬ this includes unauthorised use and potential viruses

- to determine the relevance of the communication to the employer's business - ie picking up relevant messages when someone is away from work.

The Information Commissioner - responsible for enforcement of the Data Protection Act - has published a code of practice to help employers comply with the provisions of the data Protection Act. The Employment Practices Code clarifies the Act in relation to processing of individual data, and the basis for monitoring and retention of email communications.


The code of practice Monitoring at work: an employer's guide states that any monitoring of emails should only be undertaken where:
• the advantage to the business outweighs the intrusion into the workers' affairs
• employers carry out an impact assessment of the risk they are trying to avert
• workers are told they are being monitored
• information discovered through monitoring is only used for the purpose for which the monitoring was carried out
• the information discovered is kept secure
• employers are careful when monitoring personal communications such as emails which are clearly personal
• employers only undertake covert monitoring in the rarest circumstances where it is used for the prevention or detection of crime.

Anti - Bullying Policies and Training


What the Policy is Designed to Stop
There is no UK legislation specifically to protect those who may be suffering, or have suffered, from bullying or vindictive behaviour at work. This does not mean they have no legal protection. It does mean, however, that to get legal protection or redress they must be look to many parts of employment related law. The most relevant of those sources being:

Sex Discrimination Act 1975

Race Relations Act 1976

Victimisation

Protection from Harassment Act 1997

Age Discrimination

When looking at the different sources of law for an easy definition of bullying one is hampered by ‘legalease’. The definition of harassment under for example, the Sex Discrimination Act 1975 is quite complicated for those with drafting concise and easy to follow policies in mind:

The principal part of SDA 1975 s.4A provides that a person subjects a woman to harassment if
"(a) on the ground of her sex, he engages in unwanted conduct that has the purpose or effect

1. of violating her dignity, or
2. of creating an intimidating, hostile, degrading, humiliating or offensive environment for her,
(b) he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect
3. of violating her dignity, or
4. of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, or
(c) on the ground of her rejection of or submission to unwanted conduct of a kind mentioned in paragraph (a) or (b), he treats her less favourably than he would treat her had she not rejected, or submitted to, the conduct".

There is an easier route to follow however when creating an anti harassment and bullying policy. The Protection from Harassment Act 1997 The PHA 1997 does not define harassment but states that harassment of a person “includes causing the person alarm or distress”. This is an easy test for the employee to prove and is the yardstick for all employers trying to guide staff on avoiding conduct which could be construed as bullying or harassment.

The employees should be warned as to what can constitute bullying. Cases in employment tribunals have shown that a range of behaviour can constitute bullying or harassment:

• Silence – A Mrs Green recently won over £100,000 when staff gave her the silent treatment when she walked in

• Racist, sexist or Ageist jokes – In the US a man was awarded compensation when workmates referred to him as, ‘Uncle Mitty’.

• Shouting, swearing or belittling (Mrs Green had rasberries blown at her).

• Favouring others and leaving people out of social activities.


Of course, the worst type of bullying and harassment should be expressly spelt out as instances of Gross Misconduct in the disciplinary policy.

This type of training will help prevent workers from behaving in a way that can be construed as bullying. Employers should be aware that it is an implied (un-written term) in all employment contracts that:

"the employer shall render reasonable support to an employee to ensure that the employee can carry out the duties of his job without harassment and disruption by fellow workers" Wigan Borough Council v Davies 1979 ICR 411.

In other words, the employee has a right not to be bullied in the workplace. Under the Protection from Harassment Act 1997 and other discrimination legislation compensation is unlimited and employers can often be held liable for the acts of their employers and so apart from wanting to be as fair as possible the employer has added motivation for introducing the correct training and policies to tackle bullying.

It is important that professional legal advice is sought when drafting policies and dealing with legal disputes.


By Charles Price, barrister No5 Chambers
www.charlesprice.net
This article Copyright HRZone - Written by Charles Price


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