Anne Hughes
Anne Hughes

Fox Solicitors on employers monitoring email and internet

Anne Hughes, senior associate at Fox Solicitors, shares her expertise on employers monitoring email and internet usage.

In a world where everyone is glued to their smartphones and addicted to Facebook and Twitter, there are
still a few people (usually those over 20) who want their personal communications to remain private. That is
why there has been so much controversy recently over the Government’s proposals to introduce new laws
allowing it to snoop on all electronic communications of UK citizens without a warrant. But how do people
feel about their employers snooping on their personal communications?

Carrying a Blackberry 24/7 means that the line between your work and your private life becomes more
blurred, and most of us use work email for personal use. iPads are the latest “must have” executive accessory for work and play, and people don’t think twice about forwarding confidential company documents
to their personal email accounts so that they can access them away from their desks. This helps us cram
more working hours into our days, and so has an obvious upside for business. But there are downsides too.
Sensitive confidential information may be lost or stolen. As staff “tweet” about their day, or post comments
on Facebook about their boss’s latest antics, their right to freedom of expression and privacy comes into
direct conflict with the company’s interests to protect its professional reputation. This has led to a string of
employment tribunal cases hitting the news in the past couple of years.

Here are some pointers:

  • If you want to monitor an employee’s use of emails and internet at work, the Employment Practices Code published on the Information Commissioner’s Office’s website is essential reading (www.ico.gov.uk);
  • The business should have a clear internet and electronic communications policy for staff, which lays down the ground rules and explains the consequences of failure to comply;
  • Staff should be required to be familiar with the policy and warned that a breach of it will be treated as serious misconduct, which could lead to dismissal; and
  • If employees are expected to work away from the office, they should be provided with a secure way of accessing the confidential information needed to get the job done.

If it is discovered that an employee has forwarded confidential information to their personal email account,
the company will want to make sure that the information has not been misused or leaked. Often, an
employer’s first step is to carry out an investigation (including a forensic IT investigation and an interview
with the employee concerned). Then, the company may ask the employee to give written undertakings
to confirm that the information has not been misused or disclosed to any third parties. Some employers
demand possession of the employee’s personal computers and other devices as part of the disciplinary
process so that they can search for (and permanently delete) the company’s information. Understandably,
most employees will regard this to be a gross intrusion into their privacy. In reality, we often store a huge
amount of personal information and photographs on our personal computers, belonging to us and our
families. Any proposed process for inspecting an employee’s personal devices must show respect for their
privacy and property. Here are some tips on best practice:

  • Appoint an independent IT expert, who will inspect the employee’s devices only with their consent and under their supervision;
  • The scope of the IT expert’s job should be very clearly defined and explained to the employee in advance;
  • The IT expert should enter into a separate confidentiality agreement with the employee, agreeing not to disclose to any third party information belonging to the employee; and
  • In return for the employee’s co-operation, the company may be willing to indemnify the employee in respect of any damage to their device, software or personal data (including deletion).

This generation of staff has learnt how to multi-task so that we are almost constantly online. The challenge
for employers now is to help staff realise when it is appropriate to “switch-off” from their work email! It
seems that we are still working-out where the dividing line should be, between work and our private lives.

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