Everyone connected with employment issues agrees that employers should draft a policy governing how staff can use email systems, but there any consensus ends. What the policy should say and how it should be implemented are highly contentious issues.
The legal situation governing what is allowed and what isn't has the clarity of a Mississippi swamp. Trade & Industry Secretary Stephen Byers, and his minister Patricia Hewitt who oversees telecommunications, stand accused of muddying the waters.
Employers are as much in the dark as their staff. The Regulation of Investigatory Powers Act, which came into force earlier this year, calls on employers to have an agreed policy. The Human Rights Act says public bodies must respect privacy and Article 8 could be used in unfair dismissal cases to help assess the reasonableness of an employer sacking a worker for sending an email which is critical of a manager.
An EU directive that tackles the issue of snooping on telecommunications messages that took effect in October says a "non-consensual interception" is not allowed unless national laws allow for it. The contentious regulations governing emails that came out last month were in response to the EU directive. Without the regulations, employers would have been prevented from looking at anything their staff sent or received via email, over the internet or on the telephone.
The regulations state when an employer will be able to record all communications without the consent of the employee, says the TUC. These are in addition to an employer being able to monitor their employees' use of email in order to determine whether the use is business related. It is not unlawful for an employer to mount an investigation:
* to establish the existence of facts relevant to the business;
* to ascertain compliance with regulatory or self-regulatory practices or procedures;
* to ascertain or demonstrate standards which are or ought to be achieved by the employees;
* to prevent or detect crime;
* to investigate or detect the unauthorised use of the businesses' systems;
* to ensure the effective operation of those systems.
The DTI is adamant that the new rules still insist on employers agreeing a policy with staff. It argues that its rules offer a good deal of protection. "If the employer wanted to change the circumstances in which he would intercept employees' communications without their consent for any of the [individual regulations], he would have to inform them of the changes. If he wanted to intercept for any other purposes, he would have to get the consent of the employee."
For further information:
Industrial Society, 0870 400 1000 or Industrial Society
Liberty, 020 7378 8659 or Liberty
TUC, 020 7636 4030 or TUC
Data Protection Commission, 01625 545 700 or Data Protection Commission
Other websites offering advice:
msf-itpa.org.uk
itcompliance.com
