Because employers can be held legally liable for the content of e-mails sent from their premises and for the content of downloads from the internet onto their computers, it is vitally important for companies to ensure that they establish and enforce a policy on the use of electronic communications at work. The policy should set out clearly to employees the circumstances in which they may or may not use the e-mail system and internet access for private communications. Any failure to enforce such a policy, however, could result in two adverse consequences for employers:

1. any policy which is not generally enforced cannot then later be relied upon when instigating disciplinary proceedings for an offence under the policy as it will be the practice rather than the policy which determines whether the monitoring is appropriate; and
2. failure to enforce a policy which involves the monitoring of e-mails and internet access can lead to an expectation of privacy on the part of employees.

It is only if employees do not have a reasonable expectation of privacy that e-mails (and other communications) can be monitored. Further, any monitoring must be proportionate to the risks an employer is trying to avoid. Normally, monitoring e-mail traffic rather than content would be as far as an employer could reasonably go without being in breach of their employees’ right to privacy under the Human Rights Act 1998.

The decision by Ford to give a two week ‘amnesty’ to all its twenty thousand employees in which to delete any offensive e-mails and downloads from their computers, suggests that there have been numerous complaints and perhaps a number of allegations of discrimination against the company. All employees were sent an e-mail which warned against “transmitting or possessing ‘jokes’ of an offensive nature, for example, content of which is sexually explicit, racially offensive or otherwise demeans people on the basis of their religion, disability, sexual orientation”. They were further warned not to return to any banned internet sites as internet access would be monitored.

Ford have made it clear that any failure by the employees to adhere to these instructions will lead to summary dismissal. However, they will need to be very careful to ensure that they stick to their stated policy. Any failure by them to do so could lead to an expectation amongst employees that it is not being enforced and could then lead to a finding of unfair dismissal if any employee is later dismissed for breach of the policy.

© 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.

Please note the Law may have changed since the publication of article.

Q: What does the law stand in terms of responsibility for contents of email? If it goes out under a company name is it the company’s responsibility?

A: The doctrine of vicarious liability applies equally to emails as it does to other forms of correspondence. Namely, if the recipient reasonably believes the email to be sent by someone representing the company, he/she is entitled to take the contents of that email as representing the views/standpoint of the company. If the recipient has good reason to believe that the sender is not acting on behalf of the company, but in fact acting on “a frolic of his/her own” then this may make such reliance unreasonable.

Q: Is a disclaimer enough to offset this?

A: The question of the effect of disclaimers is vexed. The first question is whether the disclaimer, being unilateral i.e. the recipient does nothing to signify acceptance of the disclaimer is legally effective. Leaving this fundamental issue to one side, it is fair to say that the chances of such efficacy are almost certainly enhanced if any one or more of the following factors comes into play:

• the disclaimer appears at the top rather than the bottom of the email. In this way, the email comes to the attention of the recipient before he/she has read the contents of the email so that in the same way as a fax front sheet disclaimer, the recipient can make an informed decision whether to proceed to read the contents.
• if the recipient has had previous correspondence with the sender of the email, the recipient may be taken to have digested the contents of previous email disclaimers and it would be reasonable to conclude that he/she received the email with full notice of the standard disclaimer and could have refused to continue the correspondence exchange should he/she have been unwilling to accept the terms of such disclaimer.
• the actual contents of the disclaimer are important. It must cover the various areas of potential liability in such a manner as to satisfy the relevant guidelines which have arisen from recent caselaw and, also, statute, such as the Unfair Contract Terms Act.

Q: How can a company minimise the damage done to it by employees who have sent embarrassing/offensive emails? What procedure should they follow?

A: It is advisable to provide employees with a separate email system for private use so as to minimise the risks of such a personal email being taken to represent the views of the company. In that scenario, ironically, it may well be preferable to have no corporate email disclaimer as that would suggest that the email emanates from the company. The types of legal problems that can be caused by an email are numerous and it is not possible to prescribe a single course of action to try to ensure damage limitation. Defamation, Misrepresentation, Breach of Confidentiality, Virus contamination of recipient’s network are just a few examples of the potential consequences of an email which can give rise to legal recourse. Certainly, the best course is, where possible, to try to undo the damage that has been done. Usually, a quick call to a lawyer well versed in the relevant area of law is the best starting point.

Q: What else can a company do to cover itself legally? Are there any clauses that can be written into employment Ts&Cs?

A: Every company should have a detailed “Email and Internet Use Policy” in place. Not only should it be issued to each member of staff but also must be signed and returned by them. The policy should set out the sanctions for various types of breach of the policy and/or should be legally tied into the relevant sections contract of employment or contract for services which governs the member of staff.

The standard policy that my firm has produced for clients covers a wide range of areas, including rights of the employer to monitor use of email and the internet (consent is generally necessary under recent legislation), Illegal Activities, Defamation, Copyright, Avoiding Virus Risk, Download of Internet material and entering into web-based contracts.
Q:What are the implications for companies who send contacts to clients or employee offers (jobs, shares, car, etc) via email. Is it as legally binding as a letter?

A: There are 4 basic components of a contract, namely offer, acceptance, consideration (i.e. each party deriving a benefit) and intention to create legal relations. There is no problem in entering into a contract via email and the basic rules of contract creation are the same as in the off-line world. Employees with access to the internet and, all the more so, those with control over the company website, need to be made aware of the basics of contract law to ensure that they do not unwittingly bind the company to contracts which it does not want to enter into. The notorious problems of “Argos” and the under-priced TV’s are worth remembering in this context.

Q: What about internal mail – do bosses have to watch their language and any discriminatory feelings they might have?

A: Yes, there have already been quite a few cases about harassment/discrimination of various types, including sexual and racial that arise from ill-advised use of the internal email system. A recent case on this point involved a black secretary who sued her solicitor employers because one of them sent an email to another, from which it was inferrable that the fact that the secretary was black might have played a role in her dismissal.

© 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.