Make it a policy to keep firm control of e-mails

An e-mail row between a solicitor at a top City law firm and a secretary became national news earlier this month when the internal e-mail was forwarded externally to a number of other law firms. The solicitor sent the secretary an e-mail asking for 4 to cover his dry cleaning costs in relation to tomato ketchup allegedly spilt by the secretary on the solicitor’s trousers. The secretary replied, apologising for the delay in her response due to the death of her mother, and copied in other members of the firm into the exchange.

The dissemination of the e-mail provoked widespread hilarity but for the individuals involved and the firm itself, this is no laughing matter. This is the latest in a series of incidents relating to the use of e-mail in the workplace in which highly personal matters have hit the headlines. As well as the obvious issue of discipline, practical issues arise in relation to the broader issue of how organisations can successfully formulate an acceptable use of e-mail policy.

Is this a disciplinary matter?

The solicitor, whose behaviour was the subject of some comment, was least likely to face disciplinary action (he has now resigned for other reasons). At most, this employee had been using the firm’s e-mail system for a personal matter, an act that undoubtedly takes place many times a day in every workplace.

As far as the secretary is concerned, it seems likely that the law firm will have a policy limiting the extent to which e-mails can be copied to a large number of user groups. If there is such a policy then it seems fair to speculate that this particular e-mail may not have had approval for widespread dissemination. Of course, we do not know the context in which this unfortunate exchange of e-mails arose.

Somewhat ironically, while the names of the secretary and the solicitor became widely known, it is those whose names we do not know who arguably are most likely to face disciplinary action, ie, the employees of the firm who forwarded the e-mail to contacts outside the firm, possibly with some sort of adverse comment about one or other of the parties. Where a private matter between two individuals contained in an internal e-mail is communicated outside the business then, regardless of any policy, that could be considered misconduct.

Acceptable use of e-mail

E-mail has been of great benefit to the workplace, allowing rapid internal and external communications. The drawback of e-mail is that its simplicity has created an informality of communication and an increase in ‘written’ communications in the workplace.

It is therefore vital for companies to formulate an effective e-mail policy, while maintaining good employee relations.

For the policy to be effective, employers have to educate employees. Employees have to be aware that non-compliance could lead to serious disciplinary sanctions.

Common sense needs to play its part and, if employees have good personal relationships with each other, unfortunate incidents can usually be avoided.

This recent incident highlights the need for organisations to make sure they have an effective e-mail policy, as the escape of internal
e-mails into the public domain can certainly be embarrassing and could, in certain circumstances, attract liability.

What an e-mail policy should do

  1. Make employees aware of the legal implications of e-mail. Improper statements in e-mails may give rise to personal or company liability
  2. Remind employees of their duty of confidentiality to their employers
  3. State expressly whether employees are allowed some restricted personal use of e-mail or whether it is completely forbidden. If personal use is allowed, consider guidelines including tone and content
  4. State how the company intends to monitor e-mail use. Employers have a number of legal duties under the Data Protection Act 1998, the Human Rights Act 1998 and the Regulation of Investigatory Powers Act 2000
  5. The policy should be set out in the staff handbook, contract of employment or stand-alone policy so as to be easily accessible and well known

Edward McHugh is senior associate, employment law team, Dundas & Wilson

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