The Dangers of E-mail and Internet Use in the Workplace

Because employers can be held legally liable for the content of e-mails sent from their premises and for the content of downloads from the internet onto their computers, it is vitally important for companies to ensure that they establish and enforce a policy on the use of electronic communications at work. The policy should set out clearly to employees the circumstances in which they may or may not use the e-mail system and internet access for private communications. Any failure to enforce such a policy, however, could result in two adverse consequences for employers:

1. any policy which is not generally enforced cannot then later be relied upon when instigating disciplinary proceedings for an offence under the policy as it will be the practice rather than the policy which determines whether the monitoring is appropriate; and

2. failure to enforce a policy which involves the monitoring of e-mails and internet access can lead to an expectation of privacy on the part of employees.

It is only if employees do not have a reasonable expectation of privacy that e-mails (and other communications) can be monitored. Further, any monitoring must be proportionate to the risks an employer is trying to avoid. Normally, monitoring e-mail traffic rather than content would be as far as an employer could reasonably go without being in breach of their employees' right to privacy under the Human Rights Act 1998.

The recent decision by Ford to give a two week 'amnesty' to all its twenty thousand employees in which to delete any offensive e-mails and downloads from their computers, suggests that there have been numerous complaints and perhaps a number of allegations of discrimination against the company. All employees were sent an e-mail which warned against "transmitting or possessing 'jokes' of an offensive nature, for example, content of which is sexually explicit, racially offensive or otherwise demeans people on the basis of their religion, disability, sexual orientation". They were further warned not to return to any banned internet sites as internet access would be monitored.

Ford have made it clear that any failure by the employees to adhere to these instructions will lead to summary dismissal. However, they will need to be very careful to ensure that they stick to their stated policy. Any failure by them to do so could lead to an expectation amongst employees that it is not being enforced and could then lead to a finding of unfair dismissal if any employee is later dismissed for breach of the policy.

SPRECHER GRIER HALBERSTAM LLP

Sprecher Grier Halberstam specialise in IT law.

For further information on this or to discuss Employment Law issues please contact Belinda Lester of Sprecher Grier Halberstam on 020 7544 5625 or email at belindal@sghlaw.com

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