Please note the Law may have changed since the publication of article.
A 32 year old black secretary who until recently worked for City law firm Charles Russell is bringing a claim against the firm for sex and race discrimination on account of an email she unwittingly saw after she handed in her notice. The e-mail, sent by one of the partners to another, suggested that perhaps now they could get “a busty blond” who might still not be any good at the job but at least would be nice to look at. She was naturally very upset by this and according to her doctor is now too ill to work.
Because her claim is for sex and race discrimination there is no cap on the level of compensation she could be awarded. This case should therefore serve as a sharp warning to all employers as to the dangers of e-mail in the workplace, which is a permanent written record and so potentially more dangerous than a verbal communication, which might later be qualified, denied or withdrawn. Even though the offending missive was sent by an employee of the firm, it will be the firm itself which has to pick up the tab because it is vicariously liable for the acts of its employees.
What many employers will want to know is how they can best protect themselves against such proceedings being brought against them. After all, these days e-mail is such a common form of communication that many people use it in the same way as they would the telephone or even instead of face to face conversation. Companies need clear and unequivocal e-mail policies which are properly enforced. These policies need to cover a wide range of areas and to be carefully drafted to protect the employer against commercial, legal and technical exposure. The commercial risks include embarrassment amongst clients or customers if compromising emails are publicised. Legal consequences include damages due for defamation of third parties or damages for discrimination as in this case. Finally, technical exposure may result in various ways, perhaps the most common of which is employees unwittingly opening virus-infected emails. The email policy must not only cover all of these areas but also be properly implemented by the company so as to be enforceable.
Simon Halberstam has formulated email and internet use polices and has created a standard one for client use. The policy can also be tailored to the needs of individual employers. So long as the policies are rigorously enforced, then employers should be able to rest assured that they have done all that they can to avoid expensive and embarrassingly public claims of this sort being brought against them.
© This article is copyright Simon Halberstam 2008 and should not be construed as legal advice or opinion in any specific facts or circumstances. the contents are intended for generic information purposes only. You are urged to contact a suitably qualified lawyer for specific advice.