Monitoring Employee Emails : Is Banning Personal Use Enough?

Monitoring Employee Emails : Is Banning Personal Use Enough?

Monitoring Workers’ Emails or Communications and the Right To Privacy

A recent case, linked to personal emails and messages at work, has made it clear that, when considering a workers right to respect for privacy in the workplace, forbidding the use of work computers for personal purposes was not enough to allow the monitoring of email communications.
 
If an employer IS going to monitor workers’ emails, or electronic communications (for example email, messenger, chat, calls), the employer should tell workers this fact.
 
Here (in the case of Barbulescu v Romania), the employee knew it was forbidden to use work computers for personal purposes, however, he had not been told that the employer was monitoring his communications.  It was therefore decided that there had been a failure to strike a fair balance between the employer’s and the employee’s interests, and the employee was entitled to compensation.

Whilst most businesses already have such policies in place, now is a good time to review it, so to ensure it is tailored to your organisational needs.

If you are considering putting one in place, here are a few useful pointers:

Electronic communications policies – Why have one?
Your policy can help:
– set levels of use, acceptable behaviour, and standards
– indicate sanctions for breach, including disciplinary procedures, criminal or civil liability
– reduce potential employment law claims, contractual liability, and loss of productivity
– permit monitoring, to ensure compliance and protect the business
What should we include?
Whilst each business will tailor it to their needs, it is aimed at the setting of appropriate standards of conduct and performance.  Your policy might include:
  • what sites can or cannot be visited (be it social media sites, chat facilities, or inappropriate or illegal sites)
  • when and where personal use is permitted (top tip – do not ban it if some use is acceptable; you won’t enforce it)
  • prohibiting the download of software, or attaching electronic devices, without the consent of your IT department
  • banning the sharing of chain emails or jokes
  • cautioning against misuse of copyright information
  • referring to any other policies, including anti-harassment policies
  • clarfying that emails can contain content that may be referred to in employment, criminal or civil proceedings
  • reminders of confidentiality and data protection obligations
  • information security considerations, such as encryption, passwords, or wifi use
  • rules for removal of equipment, or information, from the workplace

Advice on business email etiquette, and rules, might be useful such as:

  • limiting dissemination of information
  • correct use of to, cc, bcc, and out of office
  • stating that the employer’s standard disclaimer must be used at all times
  • authorisation for transactions or purchases

Monitoring will need to be clearly set out, to include:

  • who, when, why, how
  • responsibility and accountability
  • records, including retention, deletion, access

For further information please also see the Information Commissioner policy at paragraph 3.

Final Tip : Remind employees often!

In addition to ensuring employees have been signposted to any such policy (and you have a record of this, i.e. them signing a document) it is crucial that you also remind employees of the policy regularly.

We have had unfair dismissal cases which would have had a very different outcome, in the employment tribunal, for the employer, had they not regularly reminded employees of their electronic communication policies AND had applied it consistently across employees.

 If we can assist further please email contact@shlaw.co.uk.

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