Work emails: Privacy, pitfalls and porn

by The Findlaw Team

Email has become an essential work tool for many people, but providing employees with email can be a double-edged sword, as numerous employers are finding. The media is awash with email-related scandals, including recent privacy breaches committed by large public sector organisations.

Potential pitfalls of emails at work include:

  • Confidential information and privacy breaches. Emails can potentially be a mechanism for commercially sensitive or personal information to get into the wrong hands. It could be by way of a simple mistake (by emailing the wrong person sensitive information), or there could be a deliberate attempt to hack into a system or to gain information through an employee who has access to confidential data.
  • Discrimination and harassment. As with any form of communication, email may be used to convey a discriminating or harassing message.
  • System security. Emails often come with attachments, some of which may be malicious, such as viruses and ‘trojans’.
  • Obscenity and porn. Even though the employee may be shocked and horrified at what a personal or professional contact has sent (often in the name of humour), once it arrives in their inbox, the image is automatically stored on the employer’s system.
  • Time wasting. There is potential for lost productivity if employees spent time reading and writing personal emails in work time.
  • Defamation and threats. Statements sent by an employee from their work email may be attributable to their employer, so if an employee uses their work email to say anything defamatory or threatening, they open up their employer to possible civil or criminal action.
  • Disrepute and discord. Many a red face has been caused when a casual or potentially insulting email has been sent to a myriad of people because the sender has clicked ‘Reply to all’ by accident. This simple mistake can lead to discord in the workplace or a tarnished reputation for the organisation.

What can employers do?

Technology may provide some solutions to help with heading off potential problems, but informing and educating the people who use the email system is absolutely essential. To this end, it’s imperative to have a robust, well-communicated and well-understood email policy in place. The rules and procedures contained in the policy should be regularly reviewed and updated to ensure they remain relevant as both technology changes. However, the policy should be worded so that it will cover technological changes in the short to medium-term and should include new technologies automatically – so that it isn’t being continually rewritten.

Areas that an email policy could cover include:

  • Permitted uses of the email system;
  • Monitoring of emails;
  • Privacy and confidentiality;
  • Prohibition of certain material, eg offensive, discriminatory, defamatory, derogatory;
  • Email etiquette;
  • Access to computers and passwords;
  • Dealing with spam;
  • Disclaimers;
  • Administration rules; and
  • Possible consequences of a breach of policy.

Case example: Insulting email

A union organiser was employed by the Service and Food Workers Union (SFWU), and was a member of the Manufacturing and Construction Workers Union (MCWU).

The organiser expressed her opinion about the SFWU’s regional secretary in an email reply to a MCWU delegate, and 'replied to all'. The email chain expanded and was eventually sent to people at the SFWU, including the regional secretary.

The organiser’s email offended the regional secretary. It said that the regional secretary was responsible for her partner's actions during a public incident, and that "to see it any other way is vomit material". It expressed an adverse view of the regional secretary's behaviour and suggested if anyone else behaved like that, they'd be "gone by lunchtime".

The organiser was dismissed by the SFWU, partly for sending an email in a manner designed to undermine the regional secretary. The Employment Relations Authority determined that the email was not misconduct, even of a less serious nature.

The email was not sent in an attempt to undermine the regional secretary - it was an internal communication addressed only to members of the MCWU. The organiser was not responsible for the fact that it subsequently ended up outside of that union. The Authority ordered the union to pay the organiser lost wages and $6,000 for injury to feelings.

Searancke v Service and Food Workers Union NGA Ringa Tota Inc (2009)

Case example: Inappropriate material

An IT audit discovered 26 inappropriate ‘emails of concern’ sent by an employee. The emails contained lewdness, nudity, genitalia and/or sex acts. Seven were described as being of particular concern. The employee was dismissed for serious misconduct.

A key point in the employee’s defence when his personal grievance was heard by the Employment Court was that he was not aware of the company's email policy, and that when he found out about the investigation, he read the policies and immediately stopped sending inappropriate emails.

Before the Court, the employee admitted he would have been embarrassed if his manager had looked over his shoulder when he was viewing one of the more objectionable emails. The Court gave an example of one of the particularly objectionable emails that the employee had forwarded as being a poster depicting a young woman walking down the street being watched by a group of five men, with the title "Gang Rape: 5 out of 6 people enjoy it".

On the evidence, the Court held that: "It is clear that [the employee] was aware that [his employer] had policies relating to email use and that he was bound by them. On his own evidence, it is also clear that he knew at the time that it was wrong to send the emails he sent. The policies were readily accessible to [the employee] and readily understood by him when he looked at them on 9 September 2008. In these circumstances, I find that [the employee] ought to have known what the policies were and that his ignorance of them was inexcusable."
The Court concluded the employee’s dismissal was justified.

Safe Air Ltd v Walker (2009)

Case example: Culture of sharing offensive material

The company's computer policy prohibited employees from viewing or downloading pornographic or offensive material. The employee’s manager distributed a copy of the computer policy to staff as a reminder. Less than three months later, the employee forwarded an email containing an image of a male contortionist to 28 people, within and outside the company. A colleague found the image offensive and complained.

The employee admitted forwarding the email. She explained she found the image funny and didn't think it was pornographic. She said she could not recall the exact terms of the internet policy due to the length and depth of the document. She apologised for sending the email.

The manager didn't believe the employee’s apology was genuine and she was dismissed for breaching the computer policy. The employee claimed that her dismissal was unfair because there was a culture within the company that saw staff frequently sending emails that some could consider offensive.

During the Employment Relations Authority's investigation, the manager was asked if he was aware of such material circulating in the workplace. He admitted he got those emails but deleted them. The Authority determined that the manager was, or at least should have been, aware of a culture of inappropriate emails being sent in the workplace. It observed that although the fact that the employee had not taken much notice of the policy should not be visited on the employer per se, in the circumstances an inquiry should have been made as to why she had such a blasé attitude to a company policy.

The Authority concluded the dismissal was unjustified and ordered the company to pay the employee $6,000 compensation for humiliation.

Linnell v Les Mills International Ltd (2012)

Case example: Work emails are not private

An employee was investigated for an alleged breach of the company’s policy prohibiting emails for non-business purposes. It was discovered that she had sent emails to a friend's work email address referring to her managers as "ufa" and "kefe". These are terms of abuse similar to "dickhead" or "f*ckwit". The employee was dismissed, partly because of this email.

The Employment Relations Authority determined that the employer was justified in finding the language the email used in her emails sent to her friend was misconduct. The Authority rejected her defence that those emails were private. The employer's policy stated that all messages generated on its systems were company property and that it had the right to monitor all employee email passing through its system. Inappropriate use was forbidden and expressly included coarse language. The Authority determined that referring to managers as "ufas" and "kefes" was coarse language.

The Authority determined that whatever the employee might choose to say about her managers in genuinely private situations, she took the risk of disciplinary action when she made derogatory comments about them during working hours and while using the employer's technology and resources. The Authority concluded that the employee’s actions justified her dismissal.

Toleafoa v Vodafone New Zealand Ltd (2011)


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