Employment law clinic No 7 Private use of the internet

The challenge A company is to introduce access to the Internet for all its
staff, including the ability to send and receive external e-mails. It wants to
introduce a policy, allowing some personal use but ensuring the system is not
abused. Paul White and Charlotte Hamer from the Employment and Pensions Group
of law firm Stephenson Harwood, give their advice

Legal issues

– As no member of staff has been using the Internet or external e-mail at
work the company does not have to take into account existing practices.

– The company should consider what practices to prohibit, the amount of
personal use and whether or not it wishes to monitor e-mails and Internet use.
It also needs to look at whether any business will be done using e-mail and
therefore what standards and precautions need to be in place.

– The company could be vicariously under the Sex Discrimination Act 1975, the
Race Relations Act 1976 and the Disability Discrimination Act 1995 if any
material is sent via e-mail which is in any way discriminatory on the grounds
of sex, race or disability.

This would include lewd jokes or pornographic pictures downloaded from the
Internet. E-mail and the Internet, like any other media, are capable of
constituting harassment if the recipient considers the e-mail to be offensive
or pornographic pictures are displayed in the workplace.

The policy should therefore prohibit e-mailing anything which could cause
offence and prohibit access to pornographic, racist or other
"inappropriate" websites.

– An e-mail is capable of binding the company to a contract. The policy
therefore should contain provisions concerning what business may be contracted
using e-mail and reinforcing that e-mails are the same as letters and should be
treated as such.

– Comments made in an e-mail may also be libellous and employees should be
reminded that they are much more permanent than they may think, and are often
retrieved from systems to be used in evidence.

– Monitoring e-mails is covered by the Regulation of Investigatory Powers
Act 2000 and the Data Protection Act 1998. A code of practice on the use of
personal data in employment will be issued towards the end of the year.

The Telecommunications (Law ful Business Practice, Interception of
Communications) Regulations 2000 allows the company to intercept e-mails so
long as it is doing so on its own telecommunication system, that it is carrying
out the interception in order to ensure compliance with its procedures and
providing that the company has a reasonable belief that both the recipient and
the sender knows that the e-mail may be intercepted. A policy on the use of
e-mails and the Internet will help demonstrate that the monitoring is to ensure
compliance with its procedures.

– E-mails and records of internet access may be personal data for the
purposes of the DPA. Any dealings with that data including intercepting it,
storing it or reading it will be "processing" for the purpose of the
DPA.

The Eight Data Protection Principles must be adhered to when monitoring
e-mails.

Any monitoring should be proportionate to the needs of the company and not
excessive. Employees should also be informed that monitoring will occur and
that their e-mails will therefore not necessarily be private.

However, the company does not have carte blanche to carry out monitoring as
and when it chooses: monitoring must remain proportionate to the need of the
company to ensure its policies and procedures are being complied with.

HR issues

– Breaches of the policy should be dealt with. The policy must cross-refer
to the disciplinary policy which should, in turn, make it clear that breaches
of the policy constitute misconduct, and, in some cases such as discrimination,
gross misconduct.

– Employees are likely to be sensitive to having private e-mails read by the
company and so the purpose of the monitoring should be clearly explained and
that it should be made clear that monitoring will be done on a random basis,
unless there is reasonable evidence to suggest a particular individual should
be monitored.

– Being sent lewd jokes or pictures by e-mail is the same as any other
method of harassment and should be treated as seriously. The informality of
e-mails can sometimes lead to too informal behaviour.

– Do not keep copies of e-mails for longer than is absolutely necessary.

– Employees should be given adequate training on what they can and can’t do
and why.

– E-mails should not be used as a tool to bully and harass employees. They
tend to be used often because they are quick and easy to send and receipt is
almost instant. This can lead managers to write in an e-mail that which they
would not necessarily write in a memo which has the effect of making employees
feel bullied. The personal approach is still the best.

By Paul White, a senior associate and Charlotte Hamer, a professional
support lawyer in the Employment and Pensions Group of City law firm Stephenson
Harwood

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