28 May 2020 - Article
We are often asked about use of the internet and e-mails in the workplace, whether employers can monitor e-mail content and volume of e-mails and what employers should do if they come across an offensive or sexual or racially explicit e-mail. The legislation on this topic can be confusing. The following provides a short recap and some ideas for your e-mail and internet policies.
There are 3 key pieces of legislation:
- The Data Protection Act 1998 covers the protection of personal information. It covers different forms of electronic communication including telephone, fax, e-mail, text (SMS) messages, picture and video messages and automated calling systems.
- The Regulation of Investigatory Powers Act (RIPA) covers the monitoring of communications. Under RIPA it is an offence to intercept (intentionally) any communication, such as an e-mail, in the course of transmission.
- The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 are regulations made under RIPA governing how an employer can intercept e-mails etc without committing an offence. Interception is permitted provided the storage of any personal information meets the needs of the Data Protection Act.
As employers, in order to comply with all 3 pieces of legislation, you must make reasonable efforts to inform every person who uses your IT systems that communications such as e-mails may be intercepted. This can be done through a well drafted and clear e-mail and internet policy which emphasises that you take e-mail and other forms of electronic communication seriously and that in certain circumstances, e-mails etc may be intercepted and read. So as not to be in breach of the Data Protection Act monitoring must be proportionate, relevant and only in place for a ‘suitable’ period of time.
E-mail monitoring is always a sensitive issue but there may be occasions when it is necessary, for example to ensure that e-mail use is legitimate, to assist in the investigation of disputes and alleged wrongful acts (including disciplinary matters, such as allegations of excessive or inappropriate use) or to comply with legal obligations and retrieve lost messages. Before monitoring e-mails, you should inform employees that you can and will monitor their e-mails. Be sure to act reasonably and consistently between employees.
The policy should also set out what is and what is not acceptable use of e-mail and the internet. E-mail ‘banter’ and ‘jokes’ or a carelessly addressed e-mail can land your employees (and you) in hot water – you may be vicariously liable for your employees’ actions. Your policy should warn against unacceptable communication and provide disciplinary sanctions for misuse. You should then follow through on such unacceptable conduct, for example, by disciplining employees who are in breach. If you do this, you may well have a good defence to grievances or claims raised by an employee about another employee’s breach of the policy.
Remember that e-mails and in some cases texts, can be retrieved even after they have been deleted and can be used as evidence in legal proceedings. The recent case of headmistress Lesley Tidy demonstrates the point in relation to text messages. In that case, Ms Tidy called in ‘sick’ but in fact went on holiday. She then sent a text message to a colleague saying: “What more can a girl want? Sitting here in the sun reading a book!”, The incident was one of several issues, which led to Ms Tidy’s dismissal, which the tribunal ultimately found to be fair.
Employees should be reminded to think before they type. If they think it could end in tears :’-( , keep it to themselves : – X . Once the damage is done a (::()::) might not be enough to fix it!
From time to time it is worth reminding employees of the following:
- care must be taken in communications with others, whether by e-mail, text or otherwise;
- the seemingly ‘informal’ or ‘intransient’ nature of e-mails can be misleading;
- an e-mail sent ‘in confidence’ will not necessarily remain confidential;
- the content of e-mails can be defamatory;
- accessing or transmitting obscene or otherwise unsuitable material could be a criminal offence and/or constitute unlawful discrimination (including harassment);
- it is a criminal offence to impersonate another person on e-mail; do not send e-mail messages from another user’s mailbox, or pretend to be someone you are not;
- sarcasm, humour, abuse, or tone can easily be misunderstood in e-mails;
- when to use e-mail rather than other forms of communication;
- you are entitled to keep records of emails (soft and/or hard copies);
- abuse or misuse of emails or other forms of communication may be treated as a disciplinary offence.