UK: Mail Orders And Reasonable Responses

Last Updated: 4 April 2006
Article by John Macmillan

It’s not what you say, it’s how and whether your company’s e-mail policy lets you say it.

According to a recent news story, a senior executive at Scottish Television was fired after allegedly describing her managing director as "that big fat thing" in an apparently sympathetic e-mail to his personal assistant.

The MD is said to have found the message while searching the PA’s screen for another document. On behalf of the sacked executive, a representative from the National Union of Journalists claimed that the MD had breached company policy by accessing a private e-mail, and the executive was appealing against the dismissal. If that appeal was rejected, a claim to the industrial tribunal would follow, he said.

Scottish Television said she had been sacked for a number of acts of gross misconduct relating to insulting behaviour to a colleague and breach of company rules on the use of office e-mail.

All of which will probably have got a lot of other employers and employees wondering what their company rules on e-mails are and what consequently would happen to them in such a situation. Every employer should have a clear and effective policy, perhaps as part of an overall communications policy, covering telephones, fax, and access to the Web, that is very clear and effective and that all staff are fully aware of – preferably as a result of having had to sign that they have read it.

What it contains will, to some extent, depend on the types of activity the employer is engaged in. In all cases, it should protect the organisation from being sued or falling into disrepute by banning the use of e-mails to defame individuals or other organisations and similar damaging behaviour. The policy should also identify the sort of sexist, racist or other types of language or attachments the employer would consider offensive and that could therefore be the subject of disciplinary action. What would be considered gross misconduct, requiring perhaps summary dismissal, should be separately identified.

Monitoring of e-mails should only be done for a specific purpose and, unless in exceptional circumstances, employees should be told along with how the monitoring will be done.

This is where the whole issue of use and abuse of e-mail and other communication systems in the organisation starts to run into human rights territory. The Employment Practices Code from the Data Protection Act watchdog, the Information Commissioner, makes it abundantly clear: employers should avoid, wherever possible, opening e-mails that clearly show they are private or personal. Indeed, it also suggests that employers should urge their staff to mark such e-mails as private.

The code is not the law. Nevertheless, there are plenty of reasons why this approach is only right and proper. Should an employee’s immediate supervisor be allowed to read without consent the person’s confidential discussions with the company doctor, for instance, or a complaint about that boss to whoever supervises the organisation’s anti-bullying procedures?

On the other hand, staff could be reminded instead that e-mail is notoriously prone to misaddressing or someone intercepting it, and sensitive matters of that sort might better be communicated by hand-written letters. There can, after all, be other good reasons why a person’s private e-mail and internet cache might need to be opened and inspected. Take for example, the employee using the system to download paedophile material and groom unsuspecting young people, perpetrate fraud or commit other crimes. An employer might also feel justified in ignoring the Information Commissioner’s "don’t open" guidance where evidence is required that a person has been sending sexist, racist, homophobic or other offensive messages intended to harass another employee.

Indeed, an employer could be found liable under the various anti-discrimination regulations for failing to take all reasonable steps to stop this behaviour.

"Reasonable" is the key word in deciding what uses of e-mail and other electronic communications should be prohibited in the policy, and the steps to be taken when it is breached. It is the guiding principle of employment tribunals when deciding if any dismissal or other action by an employer is fair or not.

After all, no organisation could operate efficiently if the rules on e-mail use were so prescriptive that people couldn’t dash off a message without checking every word for unintended breaches. Intended or not, people can make flippant remarks and in private conversations moan about bosses or others and it’s an unusually thin-skinned manager who bridles at every potential slight he or she stumbles across.

But even if the contents of an e-mail go beyond acceptable behaviour, in most cases this should not warrant formal disciplinary procedures – and an old-fashioned quiet word in the sender’s ear would be a far more reasonable response.

John Macmillan is a partner with MacRoberts specialising in employment law.

This article featured in The Press & Journal on Friday 10 February 2006


The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Readers should not act on the basis of the information in this article without taking appropriate professional advice upon their own particular circumstances.

© MacRoberts 2006

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