Inverness lawyer Ewan Stafford, a solicitor with Macleod & MacCallum, and a UEL member, says the Richard Scudamore affair highlights the importance of having a workable digital policy in place.
The press has been awash with allegations that Richard Scudamore, the chief executive of the English Premier League, sent private emails to friends which were sexist in nature. It has been claimed these emails referred to women in derogatory terms, contained sexual innuendos and jokes about ‘female irrationality’.
Against such a backdrop there are a number of interesting employment law questions which have been raised. Just one of which is the monitoring of email and internet use of employees.
What are the legal concerns?
As technology has developed, so has the complexity and number of methods of monitoring. This has resulted in a regulatory framework governing the use of electronic monitoring in the workplace. Employers will have an interest in ensuring that their employees work within the rules set down by the employer but in doing so the prudent employer must be aware of the legal framework.
Electronic workplace surveillance will involve the processing of data so will be governed by the Data Protection Act. This will trigger a plethora of other legislation such as:
The Regulation of Investigatory Powers Act 2000;
The Telecommunications (Lawful Business Practice(Interception of Communications)) Regulations; and
The Human Rights Act 1998
What are the benefits of monitoring?
Businesses will have an interest in monitoring emails, and even involvement in social media sites, as they may seek to avoid damage to reputation and loss of business. Emails and social media are often open to abuse and can result in other issues for employers such as:
Allegations of harassment or discrimination;
The transfer of confidential information.
The risks of monitoring emails must therefore be weighed against the risk to business. By doing so, employers must be clear when monitoring will be used and why. An electronic communications policy can achieve this by setting down clear expectations to staff.
What are the risks?
If an employer monitors communications in an unreasonable way, an employee may seek to argue that the duty of trust and confidence has been broken. That employee would then potentially bring a claim of constructive dismissal.
By engaging in employee monitoring an employer may find that some employees may believe that they have been unfairly targeted by their employer’s monitoring activities. If this is the case, those employees could also claim they have been unlawfully discriminated against as a result of their sex, race, age, disability, religion or sexual orientation.
Furthermore, it is important to remember that where an employer uses the outcome of monitoring in a disciplinary process, such monitoring will be relevant should the employee bring a claim of unfair dismissal.
Again, many of these risks can be mitigated by the use of an appropriate policy.
Comment on the Scudamore case
It is interesting to note in the case of Richard Scudamore that the English Premier League have decided not to instigate disciplinary proceedings against their Chief Executive. Instead, the Premier League have criticised the temporary PA who brought the emails to light. In statements made it appears that they are accusing the temporary PA of hacking into Scudamore’s private email address.
The Premier League’s position appears to hinge upon the PA not being entitled to access the offending email. The position would likely be different if the email had come from a work email address to which the PA would normally have access. In that case, the Premier League would possibly feel obliged to take action against Richard Scudamore.
Rather than risk being offside the Premier League have decided that disciplinary action against Richard Scudamore would be inappropriate in the circumstances. One wonders if Richard Scudamore has given a thought to pursuing the PA for infringing his privacy.
The importance of having a policy in place
Businesses who have employees accessing, sending and processing emails or other electronic communications should give serious thought to implementing policies or procedures capable of protecting the business and their staff. An email policy or an even wider electronic communications policy (which includes social media) should be a priority. The contents of this policy may well extend far beyond simply stating that communications may be monitored.
Monitoring should be used restrictively by an employer investigating a specific matter. It will not generally be the first port of call.
By setting out expectations of employees in policies and communicating the contents of those policies acceptable behaviour should be the norm. One way to do this would be to have policies form part of the induction process and to gain evidence from employees that they have accepted the terms of the policies that are in place. Where monitoring is required best practice dictates that employee consent is obtained in advance. This can be achieved by having a suitable policy in place.
Ideally, any changes should be communicated to staff. Training should also be considered.
Whereas employees can expect a degree of privacy in what they do they must remember that when they are on their employer’s time they will be subject to their employer’s rules. Equally, if they make comments which may adversely affect the employer they should expect their employer to show an interest.
Having a policy in place allows both the employer and employee to define the standards which are expected from them. Such policies provide valuable protection to businesses.