Most employers allow limited use of office email for
employees' personal use but are concerned at what point keeping in touch with
friends and family becomes misconduct.
Stuart McKellar, Director of Honiton based human
resource specialists HR Advantage, says "The level of usage that is considered
excessive may vary between organisations but the key point is that employees be
made aware of the rules."
A
designer for a Nottinghamshire shopfitting business was dismissed after using
her office system over a 15 week period to exchange more than 300 personal
emails, many of them sexually explicit, with her lover. However, last week an
employment tribunal decided that she had been unfairly dismissed and awarded
her £26,000 compensation. The tribunal ruled that, in this case, the employer
was in the wrong because the employee had not been warned that her behaviour
was unacceptable. Stuart
McKellar points out "The Company therefore not only breached
statutory dismissal and disciplinary procedures but also did not follow best
practice data legislation guidance."
A problem for many employers is how to navigate all
the legislation that now applies in this area. Laws that could be relevant
include the Regulation of Investigatory Powers Act 2000, the Human Rights Act
1998, the Telecommunications Act (Lawful Business Practice) (Interception of
Communications) Regulations and the Employment Rights Act and, most
significantly, the Data Protection Act 1998.
The crux of all the legislation is that employees must know what to
expect and that an employer's actions be reasonable and justified.
Stuart McKellar continues "To ensure that they stay the right side of
the law the best advice for employers is to introduce a formal policy detailing
what constitutes email and internet misuse and ensure that it is effectively
communicated to all employees. The policy should detail what the company
considers to be acceptable use of business email for personal messaging, in
terms of numbers of messages and their content, explaining what will be deemed
unacceptable and pointing out that the company may monitor emails and has the
right to investigate them in the event of suspected misuse. The company's
policy on personal emails and internet use should also make it clear that
misuse will represent misconduct which may result in disciplinary action and,
ultimately, dismissal."
"In a nutshell" concludes Stuart "an employment tribunal is not likely
to find in favour of a company that acts harshly against an employee who has
not been told the rules in advance."
