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Linda McCarney
Member - 3 posts
Hello,
Our practice is currently drafting an email policy and we have a couple of legal questions, set out below, in respect of monitoring and accessing the emails of employees. We should be grateful for any advice on the questions below.
Q1. If an e-mail is sent to an absent employee’s inbox, could the employer log into the account, change the password, and look at the e-mail?
Q2. Can the emails of an employee be monitored by the employer without prior notification (if deemed necessary)?
Many thanks in advance.
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James Fairchild
Member - 210 posts
Surely the answer to both of these questions has to be "yes".
Re question 1 - depending how sophisticated your server is, it should be possible for your IT people to add an "out of office" message to this account without being logged into it.
Question 2 - why don't you incorporate a "catch all" data protection type clause into your employment contracts (reissue for existing employees). I'm no solicitor, but something like:
"the employee consents to the company or its agents holding data about the employee and/or the employment relationship on its systems. Company communication systems are for business use only, however the company may, as a discretionary benefit only, permit occasional incedental personal use of these, as long as business needs are not compromised in any way. All inbound and outbound telephone calls are recorded, and this recording together with all other computer data (including sent and received emails and voicemails) remain the proprietary property of the company. Misuse of company compensation systems is an issue covered by the Company disciplinary policy and is termed gross misconduct. In addition to possible dismissal, transgressors are liable to reimburse the company for lost productive time (including inbound telephone calls) and for the cost or deemed cost of other communication services. The company reserves the right to recover such costs from the County Court if necessary"
I'm sure someone can suggest a better (briefer?) wording, or maybe an alternative tact.
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David Price
Member - 50 posts
Re: question 1 - why would you need to see the email, if you were aware that an email had been sent that would imply that you therefore know who sent it? Would it not be possible to then get the same person to re send it to the person wishing to check its contents.
Re: question 2 - If you are concerned than an employee is misusing the email system say to talk to friends rather than for work, you can clearly state that all email usage will be monitored, you cannot however use this against them without first telling them that you are intending to do so.
They are coverd by the Data Protection Act as are you, and if you allow staff to use the email system for personal use you cannot then complain when they do, unless you have set out clear guidlines as to usage before hand.
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John Salmon
Member - 10 posts
Dear Linda,
Apologies for the delayed reply.
Staff emails can be monitored but generally the staff need to be told in advance that this will happen. Accordingly, an employee's password should not be changed to access his/her inbox. There are exceptions to this general rule, such as where the action is necessary in the investigation of a crime; but generally it should not be done. If your business is faced with a particular set of circumstances related to this issue, you could contact my colleague, William Malcolm, a data protection specialist. William can be reached on 0141 249 5442.
Regards,
John
John Salmon
Partner, Pinsent Masons LLP
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Grant Davies
Member - 2 posts
John,
I have just asked a similar question of WPL in relation to 2) Can the emails of an employee be monitored by the employer without prior notification (if deemed necessary)?
When you say 'Staff emails can be monitored but generally the staff need to be told in advance that this will happen...' if this is made clear in the email policy would this be viewed as sufficient notification?
the responce I received was
'.. this may be addressed by the employer's e mail and internet use policy. If there is no such policy the employer may access the email unless the employee can argue that the circumstances gave rise to a legitimate expectation of privacy. If there is no such expectation then e mails can be opened without advising those involved. I would strongly recommend that the situation is put beyond doubt by putting in place appropriate policies....'
I am slightly confussed!
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Emma McAuley
Member - 9 posts
My understanding is that no one is permitted to access emails sent or received by an employee without previously expressly having notified them that this may happen.
We have recently revised our email and internet policy and have now made it explicitly clear that employees are permitted to use the Company email and internet facilities for personal use in their own time (i.e. lunch breaks) however, they should have no expectation of privacy as emails and internet usage information can be accessed by the business at any time. We also have some very spcecific guidelines on acceptable usage and content for example, on offensive, derrogatory or illegal material, which is completely prohibited at all times.
We have asked every employee to sign an acknowledgement of receiving this policy document and also have a summary of the policy that an employee agrees to abide by, whenever they enter their passowrd to access the internet or email systems.
Hope this helps
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