Monitoring employee communications
A recent case involving the messaging service WhatsApp raises issues about the monitoring of staff communications by employers, says Andrew Egan. Senior Associate Solicitor in the Employment team.
In March 2017, the FCA issued a large fine to a former Jefferies’ investment banker for using WhatsApp to disclose confidential client information to a friend and a client. Some of the information that Mr Niehaus disclosed concerned a client company that was a competitor of the client that he sent the WhatsApp messages to.
The messages were discovered when Mr Niehaus voluntarily handed over his phone as part of an investigation into an unrelated complaint against him. He was suspended pending a disciplinary investigation, but resigned prior to a decision being made.
When considering monitoring employees’ use of IT and social media in the workplace, there are a number of issues to consider in accordance with the European Convention on Human Rights, the Human Rights Act 1998 and the Data Protection Act 1998.
Employees are allowed some degree of privacy in relation to conversations at work. The main issue will be whether the employee had a reasonable expectation of privacy and whether or not the interference was in accordance with the law.
It is important for an employer to have had a clear and well-publicised IT policy in place, setting out the extent to which the employees’ IT usage will be monitored. This would also have had to include up-to-date details of the types of messages that would be monitored in order for it to have been carried out lawfully.
The employer’s monitoring should go no further than necessary to investigate any alleged misconduct and to ensure that other areas of an employee’s email or internet usage that are not relevant, are ignored.
Employers are recommended to provide information in relation to the circumstances in which monitoring may take place, the nature of the monitoring, how the information will be used and the safeguards in place for employees.
Employers may breach the implied duty of trust and confidence by inappropriate monitoring. This could justify an employee’s resignation and a claim of constructive dismissal. Similarly, an employer just relying on evidence obtained through illicit monitoring as the basis for dismissing an employee, may render such a dismissal unfair.
If an employer believes that confidential information is being disclosed by employees inappropriately, then the employer should consider monitoring employee communications, provided that such monitoring is proportionate and that it does not extend to areas which are not relevant to its concerns.
Employers should have an electronic communications policy, which may extend beyond monitoring, to set standards, cross-refer to other relevant policies and to address the many risks and hazards arising from email use and internet access, including:
- Constructive dismissal
- Discrimination, harassment and defamation claims
- Intellectual property issues
- Contractual liability
- The loss of productivity