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Monitoring communications - how far can an employer go?

28 August 2014 #Employment

Malky Mackay and Iain Moody are two names that have dominated sports headlines, but for all the wrong reasons. Mackay and Moody have been reported to the Football Association (‘FA’) after the sensational revelation of their text message exchanges, which have been considered ‘`sexist, racist and homophobic`.

The revelation came just as Mackay and Moody were due to work together at Crystal Palace (‘Palace’). Within hours of the reveal, Moody resigned from his new position at Palace, and Mackay’s offer was withdrawn.

The case highlights a number of interesting points. Firstly, it underlines the importance of having a robust IT and Communications policy, which clearly sets out the employers’ expectations of employees, namely that they should take great care with the content of any text messages or other forms of communication, as incorrect or improper statements can give rise to claims for discrimination, harassment, defamation, breach of confidentiality or breach of contract. Secondly, employees should be reminded not to include anything that may be misinterpreted or considered offensive, should it mysteriously find its way into the public arena!

Latterly, the case raises the question of the extent to which employers are able to monitor employees’ communications, especially private messages. Legally, employers can monitor employees’ use of phones, the internet, e-mails or faxes in the workplace if the monitoring relates to the business, and if the equipment is provided (partly or wholly) by the employer, as long as employers have made all reasonable efforts to inform employees that their communications are being monitored. However, even if employers fall short in meeting the above conditions, it is worth noting that all evidence would be permissible in an Employment Tribunal, hence why many employers may also decide to monitor private messages, should there be just cause.

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
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