Employees' use of emails and the internet in the workplace is a relatively new and contentious area of employee relations, with both anecdote and genuine legal cases about misuse of emails growing apace.

Use of mobile phones in work time and CCTV surveillance at work are also relatively new fields with potential pitfalls for employers who have to walk a fine line between possible liability for abuse of company facilities on the one hand; and the privacy and human rights of their employees on the other. 

Because of the relatively new technology involved, employment case law relating to the internet, mobile phones and CCTV is relatively rare.

Employers can however be held ‘vicariously’ liable for the actions of their employees when they use company emails and internet facilities; and there are cases where employers have been found to have liability in the case of sexual harassment by employees using company emails.

The use of CCTV in the workplace has both Data Protection and Human Rights implications.

You should however always behave reasonably in dealing with these issues and use the following sections as a guide.

Emails and the internet

Misuse of emails

In essence, the rules about use or misuse of company emails are the same as for an employee using company notepaper - in other words, using a company or organisation's email to send information which might bring the company into disrepute is a disciplinary offence, which under extreme circumstances might justify dismissal.

However, employers should be cautious and ensure they are covered by a clear statement about use of company emails in employment contracts or staff guidance. Normal disciplinary procedures should also be adhered to - misuse of company emails would have to be extreme to justify dismissal and a verbal or written warning would normally be more appropriate.

If employers additionally want to ban the use of company computer/internet systems for accessing personal emails, this should also be made clear in contracts, staff guidance or both.

Use of the internet and emails in company time

The growth in popularity of social networking sites such as Facebook, Myspace and Bebo are, according to one estimate, costing UK employers more than £100 million a day in lost productivity.

Employers are in general perfectly within their rights to put such sites along with unauthorised use of the internet in company time off limits altogether. Firewalls limiting use of the internet to company emails and limited surfing is another option, but such firewalls are not always totally effective and not an option for smaller companies.

 We recommend the following action:

• Set out clear guidelines to all staff on internet and email usage
• You are entitled to monitor internet usage on company computers
• You should, however, not open obviously private emails unless absolutely necessary
• You should make any monitoring clear in writing to all staff to avoid a breach of privacy rights
• You are also within your rights to block certain sites where feasible
• Any personal information gathered about employees should be held in line with data protection law

Some points to include in any company internet policy are:

·         That your organisation’s internet facility is to promote communication on matters relating to the organisation’s business

·         That the system is not for personal use

·         That employees have no right to privacy when using the company’s email, internet and other computer systems; and that all of their incoming and outgoing emails, communications and web browsing may be monitored

·         That company emails must not be used improperly, for personal gain or in breach of any of your employment policies on issues such as racial discrimination

·         That staff must not use social networking sites in working time

·         That revelations about the company or about other employees (for example in personal blogs) that jeopardise the company’s good image might result in disciplinary action

·         That misuse of the e-mail/internet system in breach of the policy will be treated as misconduct and in extreme circumstances, gross misconduct

Mobile phones

Use of mobiles when driving

It is illegal to encourage employees to make or receive hand-held calls while driving.

Remember that driving on company business constitutes 'work'. Employers are under a duty to provide a safe working environment.

Remember too that employers can be held partly liable for accidents caused by their employees while on mobile phones – if, therefore, you have employees who drive as part of their work, you should issue guidance making it clear that:

·         Employees are under no obligation to make or receive hands-free telephone calls while driving

·         Hand-held mobile phones should never be used while driving

Personal calls in company time

You are within your rights to ask employees who take or make personal phone calls of any kind in company time, or misuse company-supplied phones to make calls, to stop doing so.

You are also within your rights to ask staff to stop using office plugs to charge their own phones – though this might be bad for employee relations and is not recommended except in extreme circumstances.

In all cases, you should:

·         Issue guidance on what is and what isn’t acceptable

·         Initially issue a verbal warning to an individual and only escalate to written warnings and disciplinary action in extremis

·         Always follow disciplinary procedures

·         Bear in mind that an employment tribunal is unlikely to find an unfair dismissal case in favour of an employer who dismisses an employee solely for using mobile in work time

Use of personal phones for company business

Employees are not obliged to use personal mobiles or other phones for work-related calls – if they do, you should always reimburse them promptly and, in the case of large amounts, you can ask for copies of bills for VAT purposes.

CCTV and monitoring employees

Technology allowing employers to monitor their employees relatively cheaply as well as using the internet-linked cameras to view company locations remotely are readily available; the movements and use of company vehicles can also now be easily tracked.

However, employers who decide to monitor their employees must bear in mind the limits. The Human Rights Act 1998, the Regulation of Investigatory Powers Act 2000 ( RIPA) and the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 all apply. There is also guidance from the Information Commissioner on employment practices and monitoring.

Monitoring employees

You should have a good reason for using CCTV, intercepting calls, emails and monitoring internet use. It is reasonable, for example, to use CCTV for security or where cash is routinely handled. Telephone calls to call centres are often recorded for training purposes. Emails might be monitored  to prevent abuse.  

Both employees and the public should however be notified that CCTV is in operation and employers should make staff aware of any sort of monitoring of the internet or phone calls.

Where the more general behaviour of employees is being monitored, things become more complex. Both data protection and human rights issues become relevant.

The use of CCTV, telephone, email and internet monitoring of employees is covered by the Data Protection Act 1998 if they involve the processing of information by automated means from which a living individual can be identified.

The Information Commissioner’s Code on monitoring at work

This Code applies to systematic and occasional monitoring. The main points are:

·         Covert monitoring of employees is rarely justified

·         Employees should be told if they are being monitored

·         Employees have a right to respect for their autonomy and privacy in the workplace and to expect a degree of trust from their employers

·         Any intrusion on this privacy and autonomy must be in proportion to the benefits to a reasonable employer

·         Less intrusive alternatives should be considered where available

·         In relation to the recording of telephone conversations, employers must make all staff and other parties aware that interception is taking place

·         CCTV should not be used to monitor the employee's compliance with their employment contract

·         Routine monitoring of employees by CCTV is only likely to be justified in circumstances where there are particular safety or security risks that cannot be dealt with by a less intrusive means

·         CCTV operations should not involve the random selection of employees for surveillance

·         Employers must ensure that not only employees are made aware of the operation of CCTV, but also any other people who are likely to be caught

Covert monitoring

Covert monitoring by CCTV or other interception of communications may only take place if the following exceptional circumstances apply:

§  The monitoring relates to behaviour, not to contract performance

§  It is carried out to investigate a suspected criminal activity or malpractice

§  Informing staff is likely to prejudice the above purpose and certain standards for covert monitoring are complied with

§  Any other information collected in the course of covert monitoring must be disregarded unless it relates to criminal activity or equivalent malpractice.

The standards relating to covert monitoring are satisfied if:

§ specific criminal activity has been identified

§ a need to obtain evidence by covert monitoring is established

§ following assessment, it is concluded that informing employees would prejudice the gathering of evidence

§ a limited time period for monitoring has been identified

The employer must also document the decision making process to provide evidence that the conditions in the Code are satisfied. If an employee feels that his or her privacy has been infringed, he or she may claim constructive dismissal for breach of the implied duty of trust between employer and employee. In such a case, the employer must prove that it acted proportionately and that the invasion of privacy was justified.

In one recent case, an employee claimed unfair dismissal, but his employer had carried out covert video surveillance of the employee's home to get evidence of when the employee left for and returned from work, and then compared those times with his timesheets. The issue in the tribunal was whether the video evidence breached the Human Rights Act because it had been obtained covertly and, therefore, ignored the respect for his private life. However, the court held that the surveillance operation was not disproportionate to the circumstances and was undertaken to protect the employer's assets.

Even where the above conditions for covert monitoring are satisfied, employers must not monitor employees in locations where employees have a reasonable expectation of privacy. The Code gives cloakrooms, toilets, vehicles and even private offices as examples of places where employees are entitled to a reasonable expectation of privacy.

If an employer feels that monitoring employees in such locations is justified, then they should only do so with the involvement of the police.

For in-vehicle monitoring, the Code provides that where private use of a company vehicle is permitted, monitoring of its movements during such private use will rarely be justified.

In general, we strongly recommend taking specialist advice before embarking on covert surveillance of employees.

Amending employee contracts

You will often not need to amend employee contracts when clarifying policy or issuing guidance on relatively new areas such as internet and mobile phone use.

Contracts can also have implied as well as explicit terms and you can often use this to clarify issues  – eg you could argue that it was always implicit that employees should not use mobile phones for personal purposes in company time.

However, if you want to issue new guidance or amend a contract using implied terms, you must make sure that the changes you propose are reasonable and that you consult with staff.

Where existing employee contracts need to be amended:

·         Remember that a contract is a two-way agreement and can only very rarely be amended unilaterally  

• But many contracts do, and always should have, a clause which allows the employer to make reasonable changes to working conditions

·         However, if the custom and practise of your organisation has for a long time been to allow employees to use mobile phones or to write personal emails in company time, then the situation can be more difficult and you may be limited to regulating, rather than abolishing the situation

·         You should always consult with the relevant employees and explain the situation

·         It is preferable for any changes to be agreed in writing – you can either amend an existing contract, or agree a letter and then consolidate it into future and updated contracts

·         Bear in mind that employees can sue for damages for breach of contract – so if making changes which for whatever reason have not been agreed, you should be aware of the extent of any possible claim