By Max Clarke

As the summer holiday season gets underway, employers are being advised not to dip into employees’ email inboxes or listen to their voicemail messages unless they have good reason, as well as the individual’s prior permission, to do so, say employment law firm, Shakespeares.

The fallout from the phone hacking scandal at News International is likely to mean that there is closer scrutiny of employers’ use of investigatory powers to monitor the activities of their employees, especially their usage of internal communications networks.

On 19 July 2011, the Information Commissioner announced plans to review the laws surrounding phone hacking and regulation in this area is likely to be tightened in the future.

Under current UK law, employers are permitted to monitor their employees’ internet use and their email, text and phone messages in some limited specific circumstances. For example, monitoring is allowed if employers have reason to believe that an employee is doing something they shouldn’t, which may or may not include criminal activity, or where it is in the interests of national security. In some instances, monitoring may also be permissible for quality or business continuity reasons, but the law states that employees must be warned in advance that this may happen.

According to employment law experts at Shakespeares, some small and medium-sized businesses may not have the necessary communications usage policy in place. As a result, they are unlikely to have their employees’ consent to monitor their communications messages while they are away on holiday. Without this, there are significant legal risks in carrying out any monitoring, such as reviewing staff emails and voicemails.

“The phone hacking scandal has demonstrated how important it is that employers act responsibly in this area and are perceived to be doing the right thing when it comes to using their investigatory powers to monitor their employees’ communications activity," says Simon Gilmour, employment law partner at Shakespeares.

“At this time of year it is especially important that employers are as open as possible with their employees about any monitoring that could take place while they are away on holiday and state the business reasons for this. Having a clear communications policy in place, preferably signed by employees, can help to ensure that the entire workforce is aware of any potential monitoring activity.”

Some employers may believe they already have the consent of their employees to monitor their communications activity because they have included clauses referring to their use of investigatory powers in employment contracts. However, this practice may not stand up to closer scrutiny if complaints about the intrusive nature of monitoring activity arise in the future.

Continues Gilmour: “employers need to review their policies and practices in this area to ensure that any monitoring of employees’ communications is reasonable and justified and carried out as openly as possible, where necessary, with the consent of individual workers.

“Of course, there are some very limited instances where employers do not need to have the consent of employees to investigate their communications activity, for example, when there is good reason to suspect criminal activity. However, it is still important that employers adhere to best practice in this area and seek legal advice.”

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