Employers frequently include a policy expressly entitling them to monitor employee emails and work related messaging accounts.
The monitoring of employee emails and messaging enables employers to obtain crucial information about unlawful employee activity.
Preventing misuse of computer equipment
Primarily monitoring is intended to ensure employees are not misusing the company’s computer equipment and messaging facilities. It is important to monitor potential misuse of company equipment, given the employer’s vicarious liability for their employees’ conduct, and the company’s need to protect sensitive company information.
Evidence of misconduct
Once allegations of misconduct have been raised access to the employee’s emails and messaging can be essential in gathering evidence. This can include investigating allegations of financial misconduct; breach of restrictive covenants; and harassment, including sexual harassment and bullying.
Information in support of an Interim Injunction
Evidence that restrictive covenants have been breached, or are likely to be breached, can be identified from the employee’s email traffic. Forwarding sensitive company information, including sales and marketing information, to the employee’s private email address without a very sound explanation, may be indicative of the intention to use this information in the future for personal gain.
It is important to ensure your contracts of employment strictly prohibits any activity which may result in significant loss of business.
Your restrictive covenants must be carefully drafted in order to adequately protect your company’s genuine business interests from an ex-employee. This includes preventing the poaching of your customers for a specific time post-employment and within a specific geographical location. You may also require a non-dealing clause for a specified period.
Carefully Drafted Policies
Monitoring employee emails can provide evidence of an actual breach of the express and implied terms of their employment contract, leading to disciplinary action or dismissal.
In the event the contract has already been terminated, evidence of actual breach of the restrictive covenants will be needed to obtain an urgent injunction to prevent further damage to your business. The computer and messaging monitoring policy must be carefully drafted so that it protects your business but does not interfere with the employee’s right to personal and family life.
Balancing Competing Interests
The employer has a right to protect its legitimate interests, but this must be balanced by the employees’ Article 8 right to private life and correspondence.
The European Court of Human Rights found that the employer’s monitoring of all personal messaging including messages to an employee’s fiancé breached the employee’s entitlement to private life. The decision of the Court was that:
“the domestic authorities should ensure that the introduction by an employer of measures to monitor correspondence and other communications, irrespective of the extent and duration of such measures, is accompanied by adequate and sufficient safeguards against abuse.”
The guidance demonstrates that the employee must know about the monitoring, and that it must be no more intrusive than is necessary.
Bring your Policies to the Attention of Your Employees
The case highlights the importance of ensuring that you have a monitoring policy in place, and that your employees are aware that their private and professional emails and messaging may be monitored. It would be inappropriate to monitor every single email or message sent.
If an email or message is clearly a private and confidential you should avoid reading the content.
You can refer to the existence of the messages or emails if you believe your employee is wasting time at work on personal matters. Being aware that private messages are being sent during work time will provide you with sufficient information to bring your concerns to his or her attention.
It may be a different conversation if a very personal email is being sent to a work colleague, given the potential for sexual harassment.
Elizabeth Whitehead – rhw Solicitors LLP