Let staff know if Big Brother is monitoring them

The news that a woman in Wales has been awarded damages by the European Court of Human Rights because her employer monitored her use of emails will no doubt dismay many firms and their managers.

Their frustration is understandable. After all, it’s all too easy for employees to while away several hours a week writing emails and surfing the net for personal reasons when they should actually be working on behalf of the company. Isn’t a business entitled to monitor the use of its computers to make sure everyone is working properly instead of swapping gossip in some chatroom?

Well, the good news for managers is that they can monitor internet use without fear of facing legal action – as long as they go about it in the right way.

In this latest case, Lynette Copland worked as personal assistant to the principal at Carmarthenshire College. She complained that her telephone calls, emails and use of the internet had been monitored by her employers without her knowledge in breach of the European Convention on Human Rights.

The court agreed with her and awarded damages of 3,000 euros together with 6,000 euros in costs and expenses.

In spite of this ruling, firms can and do monitor internet usage. The way to do it while remaining within the law is to draft a policy clearly outlining what is and is not acceptable to you in terms of emails and web surfing. It may seem like stating the obvious but it should be made clear that the use of illegal sites or offensive emails could damage the company and will not be permitted. Staff failing to comply with this could face disciplinary action.

It may help staff to accept monitoring if they are made aware of the potential seriousness of any misuse of emails. For example, many people still believe that emails don’t carry any legal weight. This is not true. Material contained in an email is regarded in the same way as other written statements and is likely to be accepted in court. This fact alone may make some staff more careful in the way they use emails.

The policy should outline to what extent, if any, the firm is prepared to allow staff to use the internet for personal reasons. It may be that you are prepared to allow them to do things like book their holidays online as long as it doesn’t take up too much work time. Or you may be prepared to accept a little email chit chat if it helps to keep up morale and lighten the office atmosphere.

Whatever view you take, the limits of what you consider acceptable should be clearly laid down and then of course everyone needs to know that the policy will be enforced. This means that internet and email usage will have to be monitored.

The extent to which such monitoring can take place is governed by various legislation including the Human Rights Act 1998, the Data Protection Act 1998 and the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000.

The main point is that the employer must take all reasonable steps to ensure that staff know that emails and internet usage will be monitored. They should be told this before the monitoring begins. Let staff review the policy so they feel involved in it before it is introduced.

The guiding principle should be that the monitoring is purely for business purposes to ensure the smooth running of the firm and that work time is being used productively. It is not to pry into people’s personal lives.

For this reason, it is safer to monitor the number of emails or time spent on the internet rather than the content of emails or sites visited. Emails that are marked personal should not be opened except in extreme circumstances, preferably after taking legal advice.

Any personal information that does come to light should only be used in a way that is fair and appropriate.

Any breaches should be dealt with in a reasonable and proportionate manner. For example, it can be very easy to click on to an inappropriate site by accident so staff should be allowed to provide an explanation if something untoward is discovered.

The policy must also be enforced fairly and evenly. It would be wrong to ignore some breaches and then suddenly take action against one or two employees. That could be seen as discriminatory and create a whole new set of problems.

Sally Laughton is an employment expert at Andersons Solicitors and can be contacted on 0115 988 6736 or by emailing slaughton@andersonssolicitors.co.uk

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