Monitoring employee emails

The misuse of emails by employees can harm a business, for instance by way of reputational damage, poor performance or misconduct and lead to a number of other issues such as harassment, breach of confidentiality and discrimination. As a result, many employers want to monitor their employees’ use of email.

Whilst employers have the right to protect their business, employees also have various legal rights that protect their privacy and personal data, not least the implied employment term of mutual trust and confidence. Employers do not, therefore, have carte blanche to snoop on employees’ email activity.

There have been a number of cases of late which have dealt with this issue, and which highlight the importance of balancing the rights of employees with those of employers. Overwhelmingly these cases show that employers should only monitor employees’ emails if:

• employees cannot reasonably expect their email communications to be private; and

• any monitoring is justified and proportionate.

If these factors are not present, employers may find themselves facing a claim for breach of the right to privacy under article 8 of the European Convention on Human Rights, and/or breach of the implied term of mutual trust and confidence.

If employers choose to monitor their employees’ emails, they should follow the good practice recommendations of the Employment Practices Code published by the Information Commissioner’s Office which suggests that:

• Email use policy: Businesses should have an email policy that sets out the circumstances in which monitoring may take place, the nature of the monitoring and how it will be used. This policy should be provided to all employees to ensure that they have a full understanding of the monitoring process and its implications.

• Carry out impact assessments: Before monitoring employees’ activity businesses should identify the purpose and benefits of the monitoring and weigh these up against the adverse impact it may cause. Consider whether the monitoring is justified and proportionate and if the purpose can be achieved without it.

• Limit the recipients of the monitoring results: Businesses should ensure that only a limited number of staff have sight and knowledge of the information obtained through monitoring, and this information should be kept secure.

Of course, like many issues affecting employees, each case will be dictated by its own facts, but employers must always bear in mind their employees’ right to privacy which should not be breached unjustifiably or disproportionately.

If you do not have a relevant email use policy in place you would be well advised to introduce one. Please call or email us if you think we can assist.

Jenny works in our employment law team. She helps clients with the full range of employment related matters including TUPE, defending tribunal proceedings, contractual matters and general employee relations and HR work. She has wide experience working for SMEs, owner-managed businesses and organisations employing in excess of 1,500 staff across the UK.