High-profile
monitoring issue must be handled with care by employers
HR
managers are finding the disciplinary fall-out from monitoring staff e-mails
and Internet use at work an extremely contentious area to regulate. Get it
wrong and HR can end up with egg on its face.
And,
given the huge public and media interest, whatever happens the company will end
up splashed all over the press.
A
survey of 2,000 companies (with a 10 per cent response rate) carried out by us
at law firm Klegal gives some useful indications of what needs to
change as use of e-mail and the Internet grows and throws up some surprising
findings (News, 23 January).
It
shows, for example, that more care needs to go into the definitions of gross
misconduct and the disciplinary process if some damaging messages are not sent
round organisations and to the outside business world.
It
appears from the survey, however, that use of the Internet and e-mail is less
widespread than one might imagine. There is still a tendency to limit use of
both to senior and middle management.
The
survey shows that a third of the companies restrict Internet access to senior
and middle-management and a quarter did the same for e-mail. Also less than half
the firms allowed all office-based staff to use e-mail. A high proportion have
a policy governing use of both e-mail and the Net and these generally allow for
"reasonable" levels of personal use, much as in the case of telephone
calls.
First
a complete no-no: of those who monitored staff using e-mail and the Internet 20
per cent appeared to be doing so secretly. Most of the returns received were
completed just after the drearily entitled and over-bracketed
telecommunications (Lawful Business Practice Interception of Communications)
Regulations came into force in October last year. Even interceptions made
lawful under these controversial rules require all reasonable efforts to be
made to inform all users that there may be monitoring going on.
To
put it mildly, it is a touch surprising that one in five employers may be
spying on their staff. Of course all statistics are fallible, but suppose it
was one in 10 would that make you feel a lot better?
As
it is so easy to get this right with an appropriate sentence in the policy, it
should make employers pause for thought. Guilty parties should get their act
together fast. To be sued for such an act or to fall flat in a tribunal because
your unlawful surveillance rendered a dismissal unfair would be mighty embarrassing
and the damage to the working environment does not bear thinking about.
Given
the tabloid attention it gets, maybe it is not surprising to have discovered
that the easiest way to get dismissed misusing the Internet or e-mail is to
download pornography. By a huge margin it was found to be the most widely and
heavily-punished offence, easily ahead of wasting time, defamatory messages,
improper jokes and sexual and racial harassment.
Is
it healthy that unlawful racial and sexual harassment should be easier to get
away with at work than ogling inappropriate, but quite possibly legal,
photographs? It would be sensible to regard this finding as no more than a
pointer to prevailing attitudes. Even on that basis, however, it would indicate
more care needs to go into the definitions of gross misconduct and the
disciplinary process if some very insulting messages are not to be communicated
within organisations and to the world outside the business.
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It
is obvious from all of this and from the continuing outpouring of press stories
that HR managers are finding this a difficult area. The answer is to think the
possibilities through well in advance and then draft policies accordingly.
After that it is a matter of training and implementation.
By
Stephen Levinson, a partner and head of
employment law (UK) at Klegal, the law firm associated with KPMG
