Can I open my employees’ e-mails to investigate a disciplinary matter?
The short answer is yes. An employer may monitor its employees’ e-mails for the purposes of investigating a disciplinary matter. That said, employers need to ensure they do not go too far and risk claims for unfair dismissal or breach legislation which dictates what employers can do in terms of monitoring their staff. Monitoring may therefore take place provided that employers stick to the following best practice:
In common with any disciplinary procedure, it is crucial that the employer has reasonable grounds for believing that the misconduct in question has been committed by the employee who is the subject of the e-mail monitoring. If not, then there is a risk that any subsequent dismissal will be potentially unfair.
Prudent employers will have an information systems usage policy in place that prescribes the parameters of an employer’s right to monitor its employees’ e-mails. Employees should be made aware of such policy at the start of their employment and also told where the policy can be found if future reference to it is required.
In common with general data protection guidance from the Information Commissioner’s Office, employers should not monitor e-mails beyond what is necessary for the disciplinary investigation. To this end, employers should also ask themselves whether the monitoring is likely to achieve the desired result. For example, employees legitimately expect to keep their personal lives private, so e-mails that are obviously personal should not be monitored.
It is always advisable to conduct an impact assessment in accordance with the UK Information Commissioner’s Office guidelines for monitoring e-mails at work.
In terms of actual e-mail monitoring, only relevant e-mails should be identified in terms of volume. A filtering process in terms of e-mail subject should then be undertaken and only those e-mails that appear relevant and necessary should be opened and if absolutely necessary, printed, collated and used as evidence.
By Simeon Spencer, partner and head of employment, Morgan Lewis
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