Monitoring employees at work

Can I periodically monitor emails sent and received from employees?

There are circumstances in which emails can be monitored but first you will need to be clear about your reasons for wanting to monitor them. Even if you have a valid reason for monitoring emails, you need to be very careful about reading personal emails because in many cases the reading of personal emails will not be justified.

The Employment Practices Data Protection Code of Practice ('the Code') which was issued following the introduction of the Data Protection Act ('DPA') 1998 suggests that an impact assessment should be conducted to determine whether monitoring is justified and, if so, to determine its scope and nature. Quite clearly the less intrusive the monitoring is, the better. For example, if an employer's primary concern is excessive use of personal emails by staff, the Code suggests that you should ask yourself whether analysis of email traffic rather than content of messages is appropriate. If the problem is emails that contain 'inappropriate content' you should consider whether an automated system could be used which detects certain offensive or sexual type words.

Above all, if emails are to be monitored then employees must be informed not only of the fact that their emails are to be monitored but the reasons why. Some employers adopt a blanket policy of not allowing staff to send or receive personal emails.

My Company has a communications policy prohibiting the private use of e-mail and telephone. The company has in the past turned a "blind eye" to this policy and allowed employees free use of e-mail and telephone. Could this cause any problems for the company?

Yes it could. This is because workers will base their expectations of privacy not only on the employer's stated policy but also on the practice that has been allowed to develop. You will therefore not be able to rely on the complete ban as stated in your policy if there are breaches of it in future.

To prevent this problem from arising you should introduce a more realistic policy setting out the extent to which private use is permitted /restricted, the penalties for excessive personal use and the circumstances in which the company may monitor such communications.

You should ensure your employees consent to the policy by asking them to fully consider it and sign it.

Last month I was called anonymously and told that some staff members are down loading pornography. Can I go into my employees' computers to determine whether this is true?

Yes - there are circumstances in which you can. Downloading pornography is a serious matter and can cause all manner of problems for an employer. Downloading certain material can also be a criminal offence. You should be relatively confident with the source of the information you have been given and certainly this type of situation may well present you with very limited options. Therefore, assuming you do have the necessary proof, you would be permitted to go into your employees' computers but only as a last resort and only after you have considered whether other less intrusive methods would achieve your objective.

As far as monitoring use of internet generally is concerned you would be well advised to consider introducing an automated system which shows whether certain internet sites are being accessed. Once again an impact assessment should be conducted and you would need to inform employees of any monitoring and the reasons for it.

If it is not possible to introduce an automated system due to cost and size of the business then it may be possible to access employees' computers, as long as it is proportionate to the risks to the company and any adverse affect it may have on employees. You should again keep employees fully informed. Getting employee consent in this situation is always advisable.

You should have an internet policy in force which sets out restrictions on private use and specifies prohibited use and penalties.

If you have any queries, do not hesitate to contact Frank Jennings on frank.jennings@dmhstallard.com , please provide your full contact details including address and telephone number.

This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action as a result of the contents of this document.