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Geek Culture / Email laws... case opinion from those in the know please!

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Van B
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Posted: 15th Aug 2005 13:22
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Hiya all,

Here's the skinny....

'K' sends a job application from her work PC during a break, then deletes and double checks that no evidence is left of the email.

Then her manager gets the IT manager to check the sent emails and finds the application and they sack 'K' - or should I say invite her resignation.

My question is simply: Does this email-checking breach any laws in itself or affect said persons human rights?

Cheers,


Van-B

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Drew Cameron
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Posted: 15th Aug 2005 13:29 Edited at: 15th Aug 2005 13:29
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You should look into the Data Protection Act, I think it covers this amongst other things?

Did 'K' sign an ICT agreement form? This might have included that the boss is allowed to read emails.

Sorry if that's a bit obvious


Katie Holmes does not endorse D&C or Drew Cameron.
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Posted: 15th Aug 2005 13:34
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I think it would unless there was grounds to perform a search to start with. Shame Philip isn't here - probably the only time you could get advice about the law for free

AtomZ - its got an A. Its got a Z. Now its just needs U
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Darkbasic MADPSP
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Posted: 15th Aug 2005 13:40
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Quote: "Shame Philip isn't here"


Where is he?

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Posted: 15th Aug 2005 13:42 Edited at: 15th Aug 2005 13:42
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Working - possibly

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Van B
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Posted: 15th Aug 2005 13:56
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Nobody has ever signed anything to do with data protection or privacy laws, the IT manager would'nt know a data protection law if it punched him in the face wearing a name-badge .


Van-B

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Me!
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Posted: 15th Aug 2005 14:00 Edited at: 15th Aug 2005 14:12
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invasion of privacy
workplace bullying
intimidation
unlawfull dismisal

one or more of those should cover it, theres no law against applying for jobs on speculative basis, in fact I think it`s a legal requirement that employers do not hinder or even assist employees who want to apply for other jobs (here in the UK at least) they might be wanting to force said person to leave to avoid paying out any backpay or stuff, I dunno, Philips the legal bear around here, but that sounds like a case for unfair dismisal to me (I notice they are trying to get her to leave under her own steam, that would give em the legal advantage, if YOU leave then legaly thats your decision and you have no comeback on your employer, if they force you out then that thats discrimination/unfair dismissal imo)



also i did a bit of reading and from what I can make out if you don`t have a email policy then you can`t say anything about using it for personal mail, since you never forbade it in the first place.
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David R
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Posted: 15th Aug 2005 14:06 Edited at: 15th Aug 2005 14:06
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Unless K has signed a non-disclosure agreements, then any item belonging to the premises may be accessed in any way that the employer wishes.

I'm unsure whether the sacking of K (on the grounds of the information retrieved above) would be legal though, since, as 'Me!' mentioned, this could be grounds for unfairr dissmissal.


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Van B
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Posted: 15th Aug 2005 14:13
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Yeah, I think that's the case - her manager is a right cow, she's forced about 3 people to leave and the last of those was just a month ago - so she (K's manager) is trying to redirect the flak.

Frankly I'm a lot annoyed because this all happend last week when I was on holiday, there's no way I'd check someones email behind their back but it's just the kind of thing the gimp would do in my absence.

I hope to at least scare the management here into giving her good references, I doubt she'd take matters to court unless she turned out to have a really good case.

Thanks for all the input, and your right - a legal discussion is not complete without a word from the bear.


Van-B

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Posted: 15th Aug 2005 14:13
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She should sue...

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Darkbasic MADPSP
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Posted: 15th Aug 2005 14:17
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Quote: "She should sue..."


Agreeded

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adr
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Posted: 15th Aug 2005 14:18
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'K' does not have to resign. She can decline their offer - there's been no Verbal, Formal/Written warnings, so 'K' can certainly not be sacked. Applying for a job is not gross misconduct and so 'K' is safe on that front.

If they change her role in any way (to something menial or high-risk), they can be brought infront of a tribunal for "Constructive Dismissal". As in, if they give her a job to do that she can't do, then sack her for not doing her job properly.

Additionally, if the IT department has not made All Staff aware in advance that they would be routinely checking emails for the next x days/weeks, then they are doing something wrong. Although I'm not sure which law that breaks.

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Me!
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Posted: 15th Aug 2005 14:58 Edited at: 15th Aug 2005 15:03
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ADR`s post sounds right to me, give some people a little power and they have the mail order catalogue open at "Jackboots" before you can say wt* , she (the persons boss) is not suited for the position IMO, and VanB, watch your back if your "having a go" at em, female managers make the Borgias look like sunday school teachers, I have seen em in action.

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Van B
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Posted: 15th Aug 2005 15:09
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Hehe, no worries on that part - I developed all the systems she relies on everyday, in fact the same can be said for all the managers here (although most are fairly decent people) - I could make working life hell for them

K's already walked, so I doubt she'd even consider comming back, poor little pigeon got escorted out. It's more about the damage these people could do when K needs references - her manager is the type of woman who'll gleefully twist the blade if she can.


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Posted: 15th Aug 2005 15:28 Edited at: 15th Aug 2005 15:30
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Lets hope she remembers that she may be able to claim for unfair dismissal...

AtomZ - its got an A. Its got a Z. Now its just needs U
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Me!
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Posted: 15th Aug 2005 18:10
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I guess you`re in the US, you can`t give a bad reference here in the UK, it`s against the law, if someones a problem you just don`t mention attendance or whatever.

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David R
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Posted: 15th Aug 2005 18:12
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Quote: "guess you`re in the US, you can`t give a bad reference here in the UK, it`s against the law, if someones a problem you just don`t mention attendance or whatever.
"


I'm pretty sure both bouncy brick & Van-b are somewhere in the UK

(correct me if I'm wrong )


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Van B
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Posted: 15th Aug 2005 18:31
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I'm from Scotland, and although you are right - I know from experience that employment law is almost elastic in it's flexibility - 2 human resource managers discussing a candidate over the phone will tend not to pull any punches.


Van-B

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Raven
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Posted: 15th Aug 2005 18:39
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Bouncy Brick is Southern England, Van-B is Southern Scotland (iirc)

in any-case both are UK Residents (and very likely Citizens too)
As far as this going, while it's legal for them to check e-mail going in/out if the message is personal then it cannot be used against them. As personal messages are protected under DPA.

Now as far as sending a personal message, while this is frowned upon there are no legal routes that someone can be forced to resign without the internal e-mail system being abused.

If she was Personal Messaging all day, or Sending out high-volumes of Personal E-Mail. The company would have a problem, and if they have a problem the Employee's got a problem.

They cannot force a resignation based on a Personal Message though. Technically they are not allowed to read it once they realise it isn't company related.

Now there are some recent cases of people being fired because of misconduct by slagging off thier current employers. This isn't common though, and in order for the claims to be valid it has to be proven that the companies reputation can be damaged to a reasonable extent.

For example if your bitching to your friends at home about work, that's likely to reach 10 maybe 20 people at best. On the internet your web-blogs *might* reach potencial millions. I believe the currently accepted cut-off point is 10,000 hits per week.

Sounds a lot but isn't. So it's all within a 'reasonable doubt' scenario.

Personally I would suggest against out-right legal action, as this can often lead to more costs than worth. However what I would suggest is when she applies for her Serverance Package she talks to her Solicitor first, and have them draw up a legal document stating that she had an unfair dismisal.

Often the hint that there could be a costly legal battle is more than enough to negotiate a reasonable severance package. As 'K' has already resigned this won't affect her directly per'say however previous referenced used from that employer might. Again part of the severance package could be that they acknowlage the unfair dismisal.

This will show in a better light than a forced resignation for a next prospective employer.
Damage control and providing enough cash to survive on in the mean time, is really the order of the day.

Just remember to let her know that friendly calm hints will provide her with more than some blindly angry 'I'm going to sue the pants off of you' action.

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David T
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Posted: 15th Aug 2005 18:55
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Quote: "Unless K has signed a non-disclosure agreements"


Doesn't an NDA prevent an individual from divulging confidential information, not prevent her privacy from being invaded?

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Jeku
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Posted: 15th Aug 2005 19:02
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You guys are forgetting that she did this from her work computer, which, if anything, is grounds for dismissal. Put yourself in her boss' shoes (even if the boss is a cow). Would you want employees applying for other jobs on company property?

She should have waited to get home to apply IMHO.


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Van B
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Posted: 15th Aug 2005 19:13
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Thanks for the input guys.

It should'nt involve any court cases, it's more about how this will harm her career - I mean she's been with the company for 13 years, like her entire working life so it'd be a real shame if she can't get a good reference.

Poetic justice would be if she get's the job she applied for of course.


Van-B

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Dazzag
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Posted: 15th Aug 2005 19:32 Edited at: 15th Aug 2005 19:33
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Out of interest, I found out the other day that Outlook 2003 (don't know about any other versions) has a recover option in the deleted section. So you send it. You delete it. You then delete it from the deleted section. You then go to the recovery section and remove it from there too. Bloody hell..... Obviously they could still hold a copy on the servers, but if it's something you don't want casual employees looking at, then is a bit of a git.

In my contract it says *anything* I program (doesn't indicate languages used at work only, or ones you bought at home) is their property. Whether it is in work ****or not****. Interesting idea, but would like to see them make it stick. Plus I'm sure it's to cover the idea of learning all the cool tricks from them and using it in your own thing, even if it's nothing to do (and basically no competition) with what they do. Luckily my company is turning into an amateur hour effort, and they wouldn't be able to explain anything that I know (and knew before, and have learnt completely outside work). Essentially if I wrote something cool then I would leave the company, start a business, and if had any problems claim I wrote the whole lot in the week inbetween work and my business. If they don't believe me then they shouldn't have let me go, as I really am that good. F**kers.... Heh, better hand over all that DB stuff then. Sure they would be interested.

Oh, and I can't believe 'K' did it from their work machine. No no no.... Big mistake. Don't do anything from your work machine. Apart from work obviously Plus look at the cricket scores

Cheers

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David T
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Posted: 15th Aug 2005 20:17
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Quote: "In my contract it says *anything* I program (doesn't indicate languages used at work only, or ones you bought at home) is their property. Whether it is in work ****or not****. Interesting idea, but would like to see them make it stick. Plus I'm sure it's to cover the idea of learning all the cool tricks from them and using it in your own thing, even if it's nothing to do (and basically no competition) with what they do. Luckily my company is turning into an amateur hour effort, and they wouldn't be able to explain anything that I know (and knew before, and have learnt completely outside work). Essentially if I wrote something cool then I would leave the company, start a business, and if had any problems claim I wrote the whole lot in the week inbetween work and my business. If they don't believe me then they shouldn't have let me go, as I really am that good. F**kers.... Heh, better hand over all that DB stuff then. Sure they would be interested. "


You could of course just do all your programming you do for work from your home machine, so even though that still falls under the blanket of 'everything you program', it'll be a lot harder to get hte copyright since you did it out of hours at home

Of course you then need to find something to do while at work. Solitaire perhaps?

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Andy
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Posted: 16th Aug 2005 00:06
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http://www.businesslink.gov.uk/bdotg/action/layer?r.l2=1074448560&r.l1=1073861197&r.s=tl&topicId=1074412952

Especially the page about 'Monitoring employees' and 'Enforcement and penalties'.

http://www.businesslink.gov.uk/bdotg/action/detail?r.l3=1074402338&r.l2=1074446317&r.t=RESOURCES&r.i=1074403490&r.l1=1073861197&r.s=m&type=RESOURCES&itemId=1074403613

>You guys are forgetting that she did this from her work computer,
>which, if anything, is grounds for dismissal. Put yourself in her
>boss' shoes (even if the boss is a cow). Would you want employees
>applying for other jobs on company property?

Even if she did something which may be grounds for dismissal, it doesn't absolve her employer of responsibility for what sounds like a clearly illegal act.

From the second link above:
'Only in exceptional circumstances can monitoring be carried out without an employee's consent. If for example, a serious crime is suspected and the company needs evidence.'

http://www.informationcommissioner.gov.uk/eventual.aspx?id=437

Possibly Check this as well.


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Posted: 16th Aug 2005 00:46
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Haven't read all this but everything done on a work computer is property of the owner, in this case the company she works for. Everyone has the right to view their own property if they wish. I don't think she should have been sacked for it, but it should be completely up to the company she works for, i see nothing illegal in what happened.

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Andy
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Posted: 16th Aug 2005 01:25
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>Haven't read all this but everything done on a work computer is
>property of the owner, in this case the company she works for.

Incorrect, if you had read the links I provided, the relevant legislation was outlined. You do not suddenly stop having rights because you arrive at work. Nor does your employer have any rights to your personal communication.

>Everyone has the right to view their own property if they wish.

The hardware and software is the employers property, but an employees personal communication is not the property of the employer.


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CattleRustler
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Posted: 16th Aug 2005 01:37
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regardless of any laws, you sign away most rights when you join a company (if they make you sign a doc) which usually states that they reserve the right to inspect all emails etc, and that they own everything you do on company time.

Depends on they papers you sign prior.

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Grog Grueslayer
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Posted: 16th Aug 2005 02:27
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She shouldn't of done that at work. But look at it from the employers point of view. I don't know exactly what the business is but generally when people look for another job it's going to be close to what their doing now. Anybody that finds a better job while working has the potential to steal customer data from the company their working for. Asking her to leave before she finds another job reduces the risk of loosing customers.
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Van B
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Posted: 16th Aug 2005 10:14
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Cattle,
There is no such policy here, we've never had people sign documents about what we can and can't do with their email - checking the email in the first place was illegal because they did'nt have just cause. I'm putting out a memo telling all the managers that we won't check emails for them or let them check their subordinates mail.

Grog,
I know what your saying, but it's not really the sort of business that has competitors that we have to worry about in this country so there would be no real threat. The other worry would be if she decided to mess things up deliberately, which is probably what 'cow' was more concearned about.


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Andy
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>regardless of any laws, you sign away most rights when you join a
>company (if they make you sign a doc) which usually states that
>they reserve the right to inspect all emails etc, and that they own
>everything you do on company time.

Not quite. If the company outlines the monitoring policy in the contracts, then they can monitor. If they don't outline the policy in the contract, then they can only monitor if there are VERY good reasons(usually something which involves police).

>Depends on they papers you sign prior.

No, if the policy is outlined in your contract, the monitoring itself is still subject to the law, which doesn't allow for personal communication to be read by your employer.


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CattleRustler
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Posted: 16th Aug 2005 14:00
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Quote: "Not quite. If the company outlines the monitoring policy in the contracts, then they can monitor. If they don't outline the policy in the contract, then they can only monitor if there are VERY good reasons(usually something which involves police)."


you say "not quite" then go on to reiterate my point about it depending on what contract you signed etc. I'm not saying a company can supercede the laws, all I'm saying is that most times people don't realize that they agreed to to things, then break those agreements (inadvertently or not), then are surprised when they get fired.

Either way, sending resumes out to potential new jobs from your current employer's offices is just stupid - on all levels.

Here's a twist, my friend was spending some time over the weekend looking for a potential new jobs. She saw an add for her position. Yes, her actual job, at her company - how's that for messed up.

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optical r
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actually it could be in coherence with thew company's code of proactice and that if the company in question, is sacking K for sending an email that is explicitly diallowed in the Act then its fair to say yes id agree



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Seppuku Arts
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Posted: 16th Aug 2005 14:45
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Quote: "Would you want employees applying for other jobs on company property?"


I'm applying for a new job, and my boss doesn't mind, cos when I leave he can have a replacement, and well you can't sack people because they are looking for a new job, thats silly, well can't they put an ad up until to start work when K leaves, makes more sense, and is more efficient, but then bosses aren't well known for doing the smart thing (like my boss re-employing Karl, that was the un-smart thing )

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Jeku
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Posted: 16th Aug 2005 17:18
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Quote: "Nor does your employer have any rights to your personal communication. "


Quite the contrary. Do you know the percentage of companies that monitor email on a regular basis? It's over 50% in the U.S.

If you choose not to sign the forms stating that the employer can monitor your activities on the computer, then you don't get the job. If you want, you can work at McDonalds. I'd rather work at the better paying "big brother" office business.

I also heard a stat on the radio the other day that the average time an employee spends on the computer at work doing un-work related things (i.e. checking personal email, surfing ebay, etc.) is upwards of over 40 minutes per working day. If your company has 100 employees that's 67 man-hours of PAID work the company loses everyday.

I'm not saying it's nice and happy that they sacked her, but she should have used her noggin and waited until she got home. You must look at a situation from both sides before judgement.


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Van B
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Posted: 16th Aug 2005 17:43
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She has no home connection, and the PC she used is one solely for her and her managers email and web access - we have a few 'disposables' that we let people use the internet on (most people at work don't have internet access on their own PC), so we have PC's that won't loose data if we need to reinstall. The thing is that we already allow people to access and use their own hotmail accounts and using their company email for personal stuff is not something we'd care a whole lot about.

Really the only reason it's an issue is because her manager got annoyed at her even wanting another job - not because it was through email - but because the cow will have to do her own work from now on . Basically the cows words to the HR manager we're 'I can't work with her - I wan't her out'. That decision being based on an illegaly 'snooped' email is what concearned me. It might be a short stick, but it's the only stick K has got.


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lagmaster
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i've got the "use of email policy" from when i started my job a month ago.

it states on it "users may not use the email system to conduct business other than that specifically relating to the company. any action found to be using the system for such purpose will be subject to disciplnary action, the likely outcome of which will be dismissal"

i think most it companies have an abuse of email disclosure you have to sign. if they dont, they cant get rid of you

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Me!
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most companies are self centered s***s who don`t give a c**p about their staff, how anybody could be so dumbass petty is beyond me, as for employees in the office not doing "work", the less bits of paper I see on the shop floor the better.
and the more we can keep the management out of things the better things go, I ain`t kidding...the last time they got all insistent it was done their way cost the firm over £5500 in wrongly laser profiled steel components we couldn`t use, they went in the skip, if they had asked ANYONE in the workshop they could have found out for nothing that the RSJ we use is 280 inside the web, not 235, useless , they should stick to office politics and standing round the coffee machine and leave us to make the stuff .

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Jeku
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Posted: 16th Aug 2005 22:37
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@Me! - Obviously you don't run a successful business, because you can't with that mindset

It isn't illegal if you sign the computer waivers when you join a company. Did you know that when you signed up for the Hotmail account you agreed to let Microsoft read your emails? Did you know that you also agreed to let them steal your business ideas from your emails, without compensation?


My "everyone else has one so why can't I?" blog: http://www.jeku.com/blog/
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Seppuku Arts
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Posted: 16th Aug 2005 23:03
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personally checking your mail at work isn't wrong, the big guys in the company do it, I mean my dad goes into work, checks mail and then works, no one minds, then I dunno what he doesn't now, never told me after the promotion, its something in the stocks of Barclays or some crap, anyway, if the people on a larger salary are allowed to do it, then those not so high up should be treated fairly, well its not really a great loss if K was looking for a job anyway, especially if her boss was a right cow, I mean it would be a draw back, but I would make much fuss over it, just swear at the boss a few times call her a two face [insert a load of swear words] slag, and then storm off before security gets there

http://seppukuarts.afraid.org
PC- 1.5ghz 64mb graphics gforce 2 256mb ram. And a pain in the butt
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Jeku
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Posted: 17th Aug 2005 01:43
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Quote: " personally checking your mail at work isn't wrong"


Just about every "computer" company I've worked at, including Electronic Arts, forbids personal email checking from work. The major reason is the rampant virus' people tend to open from their crappy Hotmail accounts.


My "everyone else has one so why can't I?" blog: http://www.jeku.com/blog/
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Dave J
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Posted: 17th Aug 2005 11:00
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Quote: "Unless K has signed a non-disclosure agreements, then any item belonging to the premises may be accessed in any way that the employer wishes."


No, that's not even close to what an NDA means or is used for.


"Computers are useless, they can only give you answers."
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Me!
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Posted: 17th Aug 2005 11:30 Edited at: 17th Aug 2005 11:31
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to be honest, computers are so much of a part of peoples lives that saying you can`t do this or that at work is just plain stupid, if they want to stop people checking mail or whatever then they can just block em, just like schools do, if they try to get around the blocks then thats a different thing, but even when I was on training I was using the uni`s computers to check mail etc, nobody could be bothered less (I asked the 1st time).

I often see people on forums mention they are at work, bored (so they obviously have nothing to do) and currently downloading a few patches to take home or watching a video, all this garbage about lost productivity is just that, garbage, if you have 250 documents per week to process and you can get through 10 per hour, then you have a shortfall of 3 hours per day, what they gonna do?, sack you for being efficient?, make some extra paperwork up to keep you busy?

who`s the better person to employ, the guy who has all his jobs done ahead of time and is bunking off half the day, or the guy who gets his work done on time but takes homes reams of paper to finish in his own time, the second guy might be working harder, but thats just because he isn`t handling the job as easily, I would go for the first guy every time.

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Dave J
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Posted: 17th Aug 2005 11:40
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Quote: "to be honest, computers are so much of a part of peoples lives that saying you can`t do this or that at work is just plain stupid, if they want to stop people checking mail or whatever then they can just block em, just like schools do, if they try to get around the blocks then thats a different thing"


When you're an adult you're expected to be mature enough to follow company policy, there should be no need for installing 'blocks', and in most cases there isn't.


"Computers are useless, they can only give you answers."
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David T
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Posted: 17th Aug 2005 11:56
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Quote: "No, that's not even close to what an NDA means or is used for."


That's what I said!

FPSC experience coming out?

"A book. If u know something why cant u make a kool game or prog.
come on now. A book. I hate books. book is stupid. I know that I need codes but I dont know the codes"
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Andy
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Posted: 17th Aug 2005 13:22
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>>Quote: "Nor does your employer have any rights to your personal
>>communication. "
>Quite the contrary. Do you know the percentage of companies that
>monitor email on a regular basis? It's over 50% in the U.S.

So you are saying that UK and EU follows US law?!

I have provided links to the *relevant* UK laws and official guidelines, which support my position. If you can't bother reading it, then we will just have to agree to disagree.

>I'm not saying it's nice and happy that they sacked her, but she
>should have used her noggin and waited until she got home. You must
>look at a situation from both sides before judgement.

I agree that it was stupid of her to do it, but I am not looking at the situation from either side, I am looking at it from a legal standpoint, based on the information I provided above.

The facts as I understand them from this thread:

-The company has no monitoring policy and the employees have not been informed that they would be monitored, much less why and for how long.
-The company has read her private email.

Whatever stupid thing the employee might have done, her employer has almost certainly broken the law.

>It isn't illegal if you sign the computer waivers when you join a
>company.

Again, in the UK as in the rest of the EU, signing a contract cannot take away your rights.

>Did you know that when you signed up for the Hotmail account you
>agreed to let Microsoft read your emails? Did you know that you
>also agreed to let them steal your business ideas from your emails,
>without compensation?

I always use that as an example on how people should read the TOS.


Andy
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Darkbasic MADPSP
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Posted: 17th Aug 2005 13:24
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Why do that? just quit and the sue

Love games go to http://www.freewebs.com/halorc
or
http://www.freewebs.com/gamersmad
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Dave J
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Posted: 17th Aug 2005 14:48
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Quote: "That's what I said!"


There were too many posts for me to read.


Quote: "FPSC experience coming out?"


That and the actual term speaks for itself.


"Computers are useless, they can only give you answers."
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