Tuesday 5th December 2023
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
