While the Football Association may not be a beacon for political correctness nor a role model for the younger generation in terms of how to behave, it still came as quite a shock for a sexist exchange to take place between the FA's Chief Executive, Richard Scudamore, and another, and for it to be made public.
They were "private emails exchanged between colleagues and friends of many years" Scudamore was quoted as saying. But the offending emails were sent from Scudamore's FA email account.
Therefore, by inference, does this mean that his references to women or in particular 'Edna', are views shared by the FA as a whole?
It would be logical to assume that this is not the case but when do personal emails lose their personal protection and become open to scrutiny and review? A very interesting topic indeed and one to which I'm sure all employers can relate.
The content of the email in the Scudamore case included an overtly sexist tone and was only revealed when a former personal assistant to Scudamore deliberately leaked the email chain to a tabloid newspaper. While this is an extreme case involving individuals who work in the public eye, what would the outcome have been if the firm was smaller and the email was instead sent to a smaller group, say another individual or two?
Realistically, claims for bullying, harassment and discrimination may be brought by the perceived victim even if the intention behind the content was purely innocent and intended to be jovial. If the firm ignores the content and takes no action then it may easily be exposed to a claim of constructive dismissal.
It is so easy in the working environment for an off-the-cuff remark to be taken out of context and deemed to be offensive to the person concerned. So let's look at how easy it is for such an incident to arise and what best practice steps you, as an employer, should take to avoid potential exposure:
The following email passes between colleagues:
Person A - "Betty has her tuna sandwich AGAIN. OMG it smells horrific!! Quick. Bring air freshener ASAP."
Person B - "OMG can you see how much mayo she has on that. So much for having tuna!! If she wants to watch the kilos I hope that mayo is half fat! Lols!"
Person A - "Lols!"
Here we can see that while these emails are fairly innocuous, should Betty discover they have been sent, it is clear that she may be quite upset. They are also fairly short emails and not taking up much of the employees' time to write.
In all honesty, the chances of Betty ever discovering the email exchange may be remote; the only way an employer could reasonably discover the exchange is if Betty discovers the email herself and reports the matter to her line or HR manager, or the employer monitors the emails for a legitimate reason and accidentally uncovers the exchange. On this basis, it is highly unlikely that the employer would be held liable for the email content (having not been aware of the exchange until now). However, if Betty reports the issue, the employer is then on notice to act and must address the perceived complaint in its internal grievance procedures. To simply ignore Betty's upset could easily lead to her issuing a claim for constructive dismissal on the grounds of harassment or breaches in trust and confidence.
But what if the exchanges between Person A and Person B include more individuals, say the rest of the team or the entire department?
At this point an employer should be alerted to the issue, but how they handle it will determine the outcome for both the employee and the business going forward. Best practice would probably see the instigating individuals cautioned verbally in the first instance. Should they continue, or should Betty raise a formal complaint for harassment, a more formal procedure should be initiated. This would typically involve a verbal warning, or if deemed to be extreme harassment in the first instance, a written warning. In any event, the exchanges can amount to harassment and should be dealt with according to staff handbook procedures.
As part of any grievance investigation, you may need to consider monitoring employee emails as part of a fact-finding exercise. But can an employer decide to monitor emails carte blanche?
It is not true to say that an employer, regardless of their internal policies, has free reign to monitor emails and communications at will. It may be that the employer, regardless of his having a genuine reason to be investigating a matter, be found guilty of harassment if the way in which the investigatory process is undertaken is done so in a way that infringes the employees human rights and rights to privacy.
The Data Protection (Bailiwick of Guernsey) Law, 2001 and in particular the Data Protection Comissioner provides the first port of call for the Bailiwick. As an additional form of guidance, ACAS (the UK's arbitration, conciliation and advisory service) has set out two scenarios whereby the monitoring of an employee's email correspondence is not unlawful:
Firstly, where the employer reasonably believes that the sender and intended recipient have consented to the interception; and secondly, in circumstances where consent has not been given the employer wishes to ensure:
- compliance with regulatory practices
- standards of service are met
- the prevention and detection of crime
- to protect the current internal system against viruses
To ensure compliance with the data protection laws (and also to adopt best practice) an employer's monitoring of emails should only occur in the following situations:
- if the advantage to the business outweighs the intrusion to the employee's affairs
- if an employer tells affected employee that their emails are being monitored
- when the information gathering exercise is to be used only for the purposes for which it was carried out
- the information discovered is kept secure
- employers are careful when monitoring personal emails when such emails are clearly personal
Please bear in mind that any "covert" monitoring of emails will only be considered lawful if the actions worthy of investigation are likely to be related to acts of crime.
AVOID AN OWN GOAL
So what does this mean for the employer as a whole? How can a case like Richard Scudamore's, whereby both the individuals and the FA's reputation are damaged, be avoided? In truth, it can't!
But, an employer can take all reasonable measures necessary to limit itself to any potential exposure in the future. The answer is to be transparent. As with all internal IT and email policies, a reasonable employer should make it clear to its employees that any emails (and correspondence) that they draft while at work using a work email address are ultimately accessible by the company. You may also wish to insert a provision in your internal email policy informing employees that they may be subject to email monitoring at some point and that they are deemed to give their consent.
Should you have an issue with any employee, whether it be the level or the content of emails they are sending, be sure to put them on notice first that their emails will be or are being monitored. From then on in, should they make any additional errors in judgement, they will do so being fully aware of the position that you have taken and that subsequent disciplinary action may be taken.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.