I am concerned one of our workers might be passing information on to a competitor, and we want to investigate. What can I do to check on our staff? The IT department says it can allow me to look at their inboxes, but can I do this?
Your employee has the right to some degree of privacy in the workplace it is generally recognised that we do not leave our private lives at home when we come to work.
First, you should ask yourselves: what sort of monitoring are you planning to undertake? Why are you monitoring? Can you avoid the risk in a different way? Is there a less intrusive method of monitoring? What is the impact of monitoring on the staff? And is it justified?
Your thoughts on each of these issues should be recorded in case of any future complaints.
An employer is legally bound to inform the employee about any monitoring it might undertake, and an employee handbook is a good place for this information. The information should include explanations of the type of monitoring you undertake, why the monitoring is necessary in the employer’s view, who has access to the monitoring information, how long the information is held for, and the consequences of breaching any policy, eg disciplinary sanctions.
It may be possible to find other solutions and use automated systems to monitor e-mails, for example, so that any e-mails to competitors or with attachments could be brought to the attention of staff. If employers believe they can justify monitoring e-mails, then query whether an automated system which uses random selections for occasional spot checks could be used.
Certain monitoring is also permitted for the purposes of detecting a crime, or ascertaining compliance with a regulatory requirement. This may also assist if information is being passed to a competitor. It is important to note, however, that these reasons would not entitle employers to undertake a ‘fishing expedition’ to look for matters they do not know exist, or do not have reasonable belief might exist.
By James Wright, solicitor, Irwin Mitchell
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