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Mind your own business?

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Mind your own business?

Does your IT policy allow you to monitor your employees' emails?  How do you protect your business when an employee leaves?

Can you monitor what your employees using your electronic systems are saying using?  In recent cases this issue has been looked at by the courts and, the answer is a qualified yes, provided the employer has an IT policy in place that tells the employee (a) they have no right to privacy in their communications and (b) their emails will be monitored.

In one case a finance director was given notice by his employer that his employment would terminate.  He was also told that he would not be a “good leaver” in respect of the bonus scheme and long term incentive plan that the company operated.  The employee sued in the High Court for the loss of his entitlements under those schemes.

At some point he had used his company email account to send to his own solicitor, supposedly for use in his divorce proceedings, his synopsis of the value of the shares he thought he should be getting. That email was read by the company and when it filed a witness statement in the employment proceedings they referred to the synopsis and how it contradicted the employee’s stated position in those proceedings.  The employee cried foul.

Private & Confidential?

He argued that that correspondence was private and confidential and was “privileged” from production.   The High Court held the email correspondence was not private or confidential or privileged because the employer had an IT policy which the employee had signed.  That policy made it clear that emails sent and received on their computer system were the property of the company.

Furthermore, the contract of employment allowed the employer to monitor the employee’s emails without his consent.  It was also relevant that the email in question was created in the course of his employment and referred to financial performance.  The email had been sent on and transmitted via the employer’s computer system and the employee had also saved the email on the employer’s central server.  He had not password protected it and was available to anyone who happened to look into his computer.  Finally, the email did not say that it was prepared for the purpose of seeking legal advice.

Consequently, the employee couldn’t stop the email being used by his employer against him.

The take-away point

The message for employers here is that you must have an IT policy in place which allows the employer to monitor employees’ email communications without their consent.  With the growth of electronic communication these days most prudent employers will want to review what an employee has been writing and transmitting using the company’s email account in situations where the employee is departing.  This is even more so likely to be the case where there is any friction or dispute when the employee leaves.

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