Part and parcel of managing people is getting involved in the disciplinary process. The most common concern relates to poor work performance, where an employee can’t meet the organisation’s reasonable requirements. Misconduct arises where an employee won’t (as opposed to can’t) meet your reasonable management requirements.
If you suspect misconduct, it is essential to carry out an investigation to establish the facts before taking any other action. This will enable you to decide whether to enter the formal disciplinary process. For several years now, the biggest category of gross misconduct dismissal amongst office-based workers has related to breaches of email and internet policies.
Employers are expected to give reasonable privacy to employees. If you intend to monitor communications then you must set up formal email, internet and telephone policies, ensuring that employees are expressly informed if their privacy is not guaranteed. Any monitoring which takes place should be based on genuine business reasons and should be fair and legal.
It is also important that any such policies are clear and consistently applied, so that staff know exactly what private use is permitted. In some situations, it can be helpful to use professional investigators.
Take care though; you can’t use data which is inappropriately obtained, or which breaches data protection or human rights. In one case an employer monitored an employee’s emails, internet usage and telephone calls over a prolonged period. The employer argued that it had not intercepted any telephone calls, but had simply reviewed its phone logs and checked her email and internet history.
The European Court of Justice was not impressed. It found that even monitoring the date and length of telephone conversations and the numbers called could give rise to a breach of the right to privacy. Although the employer could have obtained the same information legitimately by reviewing the relevant telephone bills, this did not prevent a finding of interference with the employee’s rights. Furthermore, simply storing data relating to her private life was a breach of her rights and it was irrelevant that the information was not disclosed to her or used against her in any disciplinary proceedings.
The employee had not been given any indication that her telephone calls might be subject to monitoring. As a result, she had a reasonable expectation as to the privacy of calls made and emails sent from work. Copland v. United Kingdom  If you have policies which give you the right to monitor employee communications make sure that you refer to it in your standard job-offer letter and make it part of your terms of employment. Even if you do this and gain written acceptance, it will still be subject to the overriding requirement of reasonableness.
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