Sue Nickson, Partner and Head of the National Emploment Law Unit at Hammond
Suddards, looks at cyberspace and communication issues in the workplace
The development of "communication technology" has had a massive
impact on the workplace environment, most notably in relation to the use of
e-mail and the Internet. In just a few years the growth of electronic media and
its use by employees in the workplace has increased at an exceptionally fast
pace. E-mail and the Internet have significant advantages for businesses,
however their simplistic and informal nature can also cause employers
difficulties. It is these characteristics that cause e-mail users to express
themselves in an informal speaking manner rather than the more formal written
or oral expressions they would normally use. The difficulties caused can be
anything from the mistaken formation of a contract to the making of offensive
and possibly actionable comments against an individual. Telephone use in the
workplace is another problematic area. Below we examine the main issues to
consider regarding cyberspace and telecommunications and the ways in which an
employer may avoid the potential legal and practical pitfalls.
E-mail harassment
It is essential that all employers are aware of the very real potential for
harassment to occur via e-mails, which could then result in a discrimination
claim. The same rules apply as to any other form of harassment. So if an e-mail
amounts to treating an individual less favourably than another due to their
sex, race and so on, and this results in a detriment to that individual, then
an act of discrimination will have occurred. This is the case, regardless of
the intention behind the act.
Where an employee carries out an act in the course of his or her employment,
the employer is vicariously liable for that act. This is even where the act was
carried out in an unauthorised way. In order to defend a discrimination claim,
the employer has to show that it took all reasonably practicable steps to
prevent the employees from doing the discriminatory act. This raises the importance
of employers monitoring the use of e-mails and having a policy and guidelines
in place. Once an issue of e-mail harassment has been raised and the harasser
identified, immediate action should be taken to stop the harassment and
instigate the disciplinary procedure while supporting the harassed employee.
This area is particularly significant in view of the scope for e-mails to
reach a more extensive audience with the use of the forward facility. It is
likely that in the same way that motive is irrelevant, the fact that others
were not supposed to see the e-mail will be irrelevant and that the initial
distribution of the information will be sufficient for there to be a claim of
discrimination and potential liability for the organisation.
Internet access at work – what are the issues?
With both the ability to transmit text, data, programs, images and sounds
and access a worldwide e-mail system, the Internet is another area where
striking a balance can be difficult for the employer. Internet access may be an
integral part of an employee’s job, and/or an employer may be agreeable to a
reasonable amount of private use of the Internet, but both can lead to abuse.
One area of increasing concern for employers is the ability of employees to
access sexually explicit material on the Internet. Employers again need to be
aware of the risk of discrimination by the viewing, forwarding or displaying of
pornographic material.
The case of Morse v Future Reality, 1996, case no 54571/95, London (North),
ET, showed that for a discrimination claim to be brought, it did not just have
to be a direct act, but could be the creation of a general atmosphere of
obscenity in the office by the downloading and circulating of sexually explicit
material that had a detrimental impact on the applicant. In this case, Morse
shared an office with a number of male colleagues who spent a lot of time
looking at sexually explicit and obscene images on the Internet. The male
colleagues did draw Morse’s attention to some specific pictures, but on the
whole the images were more generally discussed and circulated.
This behaviour made Morse feel uncomfortable, although she accepted that it
was not directed at her personally. Morse eventually resigned, claiming sex
discrimination on the grounds of harassment. She identified the pictures, the
language and atmosphere in the office as all contributing to the sexual
harassment she was subjected to. The tribunal agreed with Morse and found that
Future Reality was liable as no steps had been taken to avoid the
discrimination.
Whether or not an employer can dismiss an employee who uses the Internet for
these purposes will depend on the organisation’s disciplinary or computer use
policy. Unless either of these state that downloading and/or circulating
pornography will result in dismissal, it is unlikely that using the Internet in
this way will be sufficient to summarily dismiss.
This was the conclusion reached in the case of Dunn v IBM United Kingdom,
1998, case no 2305087/97, London (South), ET. Mr Dunn had been dismissed for
his misuse of the Internet, in that he had accessed pornography and other
non-business materials. The employer dismissed for gross misconduct and the
tribunal upheld the complaint of unfair dismissal, in that there was not a
clear breach of policy which warranted summary dismissal.
In contrast, in the case of Parr v Derwentside District Council, case no
2501507/98, Newcastle Upon Tyne, ET, Parr was dismissed for gross misconduct on
the basis that he had been accessing sexually explicit pictures and images on
the Internet at work. A full investigation and disciplinary hearing were
conducted, before the council concluded that Parr was to be dismissed. The
tribunal dismissed Parr’s claim for unfair dismissal on the basis that the
council had fully investigated the matter and found that Parr had breached
established rules of conduct and therefore breached his duty of trust and
confidence.
The exception to this is if the material is so obscene or paedophiliac as to
amount to a criminal offence. An employee would then be liable to be dismissed
for gross misconduct, even in the absence of any organisational rules and
procedures, as the employee is being disciplined in respect of the criminal
offence not the use of the Internet. In circumstances where there are no
procedures on this, however, it is clear that viewing pornography on the
Internet is not an authorised use, and therefore disciplinary warnings could
culminate in a fair dismissal.
These same disciplinary principles apply to other unauthorised use of
computers. Without a policy specifying what is and is not acceptable use, an
employer will find it difficult to dismiss for what it regards to be an
unauthorised purpose, unless the act of the employee again becomes a criminal offence,
for example under the Computer Misuse Act 1990.
Policies and procedures – an essential requirement
There is clearly a need for all organisations to have a policy dealing with
the issues surrounding the use of computers in the workplace. It is important
that each policy is drafted specifically for an organisation, taking account of
that business’s need for access and control of that access. However, the
following are some basic elements that should be included in any computer
policy:
– Ensure the policy is in writing and incorporated into the employee
handbook or manual and referred to in the contracts of employment and
disciplinary procedure.
– Specify the authorised and prohibited uses of the Internet, e-mail and any
other relevant computer uses.
– In particular, specify that the system is not to be used to view or
distribute any improper material such as text, messages or images which are
derogatory, defamatory, obscene or otherwise inappropriate.
– Provide details of access and any limits and the rules on conduct during
use.
– Employees should be warned that a mere deletion of a file may not remove
it from the system.
– A clear statement that violation of the policy will result in disciplinary
action which could lead to dismissal. Specify those actions for which an
employee could be summarily dismissed, for example harassment, discrimination
or viewing or distributing pornographic material.
Employees should be asked to sign a form acknowledging and accepting the
policy. The policy should name an individual as a contact point for any queries
or issues that may need to be raised. How much an organisation ties this policy
in with other policies such as harassment and bullying policies is a matter of
choice so long as all the above areas are covered.
These essential elements will ensure that employers have set out the
organisation’s position, will give them disciplinary remedies to deal with any
abuse and will provide some protection from possible claims of unfair dismissal
and discrimination – although, as with any policy, the key to effective
implementation is the training of employees in all aspects, particularly on
what amounts to computer misuse and what the consequences can be.
Privacy issues
As part of any policy an employer should specify that the organisation
reserves the right to monitor and disclose any matters sent over the system or
stored in it. In the absence of any such statement, employees may assume that
their e-mail is private, that is they may have an "expectation of privacy".
The European Convention of Human Rights, which will be implemented in the UK
in October this year by the Human Rights Act 1998, also impacts on the privacy
issue. Article 8 of the convention specifically provides for the right to
respect for family and private life, home and correspondence and states that
there shall be no interference by a public authority in the exercise of that
right.
The importance of article 8 was addressed in the case of Halford v United
Kingdom, 1997, IRLR 471, which also demonstrated the need for employers to have
a clear policy which has been communicated to employees. This case established
that communications in the form of personal telephone calls made by an employee
from the premises of her employer were covered by the protection of article 8.
The employee had a reasonable expectation of privacy because she had not been
warned that calls made using the internal telephone system were liable to be
intercepted.
An additional point for employers to consider in this area is the new Regulation
of Investigatory Powers Bill – the RIP Bill. The RIP Bill in its current form
will make it illegal for an employer to monitor an employee’s telephone
conversations or e-mail messages without obtaining the permission of both
parties – the recipient and sender. The RIP Bill could leave employers in the
position of not being able to monitor their employees’ use of the Internet,
e-mail or telephones.
The Government has, however, indicated that regulations will be issued to
control the effect of the Bill. It is thought that the regulations will require
employers to consult with employee representatives and trade unions about their
monitoring activities. Full details of these regulations are awaited with
interest.
In the meantime, however, employers need to take greater care when
dismissing employees on the basis of Internet, e-mail or telephone misuse, and
should also include in their policy an express statement of consent to
monitoring form that all employees should sign. Companies also need to consider
having a similar consent form signed by identifiable potential recipients.
Telephone calls – what regulations currently apply?
The issues surrounding the privacy of telephone calls has been highlighted
in recent years, not only by the Alison Halford case but also by the
significant increase in the amount of business conducted over the telephone,
particularly with the growth of call centres. Organisations are therefore
finding that there is a greater need to record or monitor telephone calls in
order to train and supervise employees, and ensure consistency of the quality
of service provided.
The recording and monitoring of telephone calls is currently covered by the
Privacy of Messages condition of the Self-Provision Licence (SPL) and the Telecommunication
Services Licence (TSL), and Oftel guidance.
The main requirement of the Privacy of Messages condition is that every
reasonable effort has been made to inform all parties to a telephone
conversation that it may or will be recorded. But these rules do not deal with
the wider issue of privacy of employees in the workplace. In light of the
convention and the pending implementation of the Human Rights Act together with
the issues raised in the Halford case, the Oftel guidance has been published.
The guidance draws employers’ attention to the right of privacy contained in
article 8 of the convention and the legitimate expectation of privacy that
employees have in respect of personal calls made at work. The guidance confirms
the need for this expectation to be removed by warning employees that their
phone calls at work may be recorded or monitored.
But the guidance also points out that it is unreasonable to assume employees
will never need to make or receive personal calls at work, and that provision
should therefore be made for employees to make such calls free from recording
or monitoring. This could be dealt with by providing access to a payphone or
certain lines that are secure and are not monitored or recorded. The guidance
is arguably breaking new ground as it suggests that there is an obligation on
employers to provide access to a private telephone. Whether this is the case
remains to be seen.
It is important, however, that employees continue to be informed about the
recording or monitoring of work phones as provided by the Privacy of Messages
condition.
Clearly all employers would be well advised to develop a policy or
guidelines for employees along the same lines as the computer policy detailed
above, to ensure that all employees are clear in relation to the use and
privacy or otherwise of telephone calls at work. However, employers should be
cautious to ensure that any interception is necessary, reasonable and a
proportionate response to the issue that has been raised and consider the implications
of the RIP Bill as already discussed.
The future?
Although case law and legislation in this area in the UK is still developing
and fairly limited, we only need to look to the US, where the use of computers
and communication systems is more advanced and the case law more established,
to see that this is an area that is going to continue to develop and remain a
significant area for employers. Employers who have not already done so will
need to give their immediate attention to introducing policies and procedures
in this area, in order to avoid the otherwise inevitable risks and liabilities.
Potential areas of liability for employers:
– Employment Law – e-mail harassment and the unauthorised use of computers
– Criminal law – employees may be involved in hacking into systems or
downloading obscene pornography
– Intellectual property – there may be issues over downloading and
distributing copyright material or software
– Defamation – actions could result from inaccurately worded e-mails, made
more likely by the informal nature of e-mails
– Agency law – employees could mistakenly create a contract via e-mails
– Breach of contract – greater risk of inadvertently forming and breaching
contracts due to the informal nature of e-mails
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– Breach of confidentiality/trade secrets – Possibility of such specific
breaches
Hammond Suddards’ Employment Unit is one of the largest and most
respected in the UK, providing advice on all aspects of contentious and
non-contentious employment law. For more information on employment law please
contact Sue Nickson, Partner and Head of the National Employment Law Unit, on
0161-830 5000
