By Eve Clennell
I have discovered that one of my team has been misusing the Internet and our email system. What are the potential liabilities and risks for my Company?
Your Company should have a detailed communications, internet and data protection policy in place. This covers monitoring, use of email, the internet and data protection. If you do not have one, there are areas of risk and liability for you as an employer. If your employee has misused the email systems and the Internet then the risks include:
Defamation An example of such a claim was seen in the case of Western Provident Association v Norwich Union, The Times, 8 July 1997. The defendant had to pay approximately £450,000 in an out-of-court settlement to one of its competitors as a result of a rumour that the competitor was in financial trouble. A rumour that was spread by its employees through the internal email system.
Breach of confidentiality or trade secrets
The risk of this is now much greater given the global nature and ease of use of email and the Internet when coupled with a lack of awareness of the risks that incorrect usage presents.
Intellectual property rights An employee who downloads unlicensed software can easily infringe intellectual property rights. Most employees are not sufficiently aware of the legal issues involved to actually seek permission from the author before downloading material and using it for business purposes.
Breach of contract
Emails are capable of forming contractual documents. Contracts can quite easily be formed by careless emails and non-compliance with the terms of any such contracts will of course render a business liable for a breach of contract claim. Emails are not usually subject to the same safeguard procedures as paper documents which are usually checked before the company signs them off.
Discrimination
Many forms of discrimination claim can occur via emails, including harassment. Where an employee carries out an act of harassment or discrimination in the course of their employment, the employer is vicariously liable for that act even when the act is unauthorised. Once an issue of email harassment has been raised and the harasser identified, immediate action should be taken to stop the harassment and instigate the disciplinary procedure while supporting the harassed employee. In order to handle this safely, it is essential that an employer has a clear policy and guidelines in place.
Finally, as a lot of cases of internet and email misuse are acts of gross misconduct, you need to handle the disciplinary and dismissal process properly or you will beat risk of a claim for unfair dismissal.
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