e-mail access

[bonnie]

This is my first post so not sure,

I would like some advice on a problem I am a committee member and our director has been suspended from her post for gross misconduct and will be coming to a hearing and we have refused her access to her computer in the office .
We would like to access that PC but not quite sure of our rights regarding it , as it is the association's pc and not her personal one .
We know that there is information on it that would help us with our inquiry, can we go into there PC.
We have an IT policy and all it say basically is that they can use it during lunch for limited personal use .
It is e-mails that we wish to access, but not sure what we can open or can we just view the ones that are opened.
would appreciate some advise on this as it is a matter of urgency
thamk you,
bonnie.

 

[Jayne]

Hi Bonnie,

Welcome to the forum

I know if someone was steeling from us in our shop, you can ask to search their bag if they agree, if they say no, you may call the police and they would deal with it.

I'm not sure what advice to give to you, it's a tricky one. Mondays are the best days to ask, you should get a legal answer then.

If it was me though, i'd just look and plead ignorance

Jayne

 

[bonnie]

Thanks Jayne for your reply.
To be honest I have already looked at some that were already opened :shock: but, not the ones that aren't opened, and this is what I want to know, plus if I can print them out and use them.
although the e-mails are sent to them , it is not her personal PC but the businesses.

I know we are allowed to get access to the PC but regarding her e-mails and file's I am not so sure.


looking at some they would help us and would like to use them.
I will keep checking forum all day to see if there is anyone that has an answer as I really do need to know ASAP, as its getting nearer the hearing, this week in fact, and want to be fully prepared.
thanks again jayne for reply.

 

[Rob Holmes]

I would say the emails are company property and could be opened especially if in the case of gross misconduct.

One of the legal-eagles on the forum may advise otherwise.

Also I'd change her password so she can't access them.

Rob

 

[bonnie]

thanks matrixx.

Yes that was the first thing we did was change it .
Hence the reason for them insisting they want access to it ,which also made us a bit suspicious, but I know they cant get access to it whilst on suspension.
We have told them that if they tell us what they want we will get it for them, but they still want to do it them self, and we are not prepared to let them have access, as things can be so easily deleted in the blink of an eye lid.
That is why we would like to get in there before they do manage eventuallyto get some access, as I am 100% this will go to tribunal.
as it this stage it is disiplinary hearing, at stage 4.

 

[Rob Holmes]

You could speak to your webhost and get a copy of everything they receive forwarded to another address too.

Bit different with sending mail as that is often not going through the hosting companies servers.

My gut feeling - call your solicitor - get your own backs covered and only do as your solicitor advises.

Rob

 

[Stephen]

Generally, as it's 'company property', you can access the computer to review email activity. This should really be done by the person conducting the investigation, rather than the person making the final judgement. You should avoid reading private emails though, as you should only really access work related emails (even though it's a work computer).

The most important aspect is that you stick carefully to your disciplinary procedures, and I echo the previous comments that seeking professional advice sooner rather than later is strongly advised - particularly when you think a tribunal is likely. (This area has many details that could catch you out.) Not sticking to the letter of the law could result in losing a case, even if gross misconduct is proved.

 

[webdesignguy]

I agree with all that has been said, make sure that you don't put a foot wrong or the other side will come down on you like a tonne of bricks.

 

[dave2005]

Hi Bonnie,

I'm not a legal eagle by any means, but sometimes I get asked to transfer mailboxes from old users to new ones due to staff turnover for lots of different reasons.

If the email address is a company address (ie [email protected]), I'd have no issues with you accessing any email on it. This is because the mailbox belongs to the company, not the individual. You could delete the mailbox and the address and there is nothing the user could do to stop you as they are not an employee of your company any more and have no claim to that address.

If the email address is a private address (e.g. [email protected]) I'd not touch it. This is because the address belongs to the individual, not the company. If it's personal mail from a personal account, my advice would be not to touch it and not to read it.

 

[bonnie]

Yes it is a company address, but at this point they are only suspended and its depending on the out come of the hearing.

are you saying we can only delete the address once they are no longer employed.

They do have personal mail in it though, to be honest I have read some (only there opened mail and mail they had in deleted folder)I have not opened any that they have not opened yet, even though there are things on it that would concern me.

Would I be able to print any of the opened mail out even though addressed to them, but would help us even though not work related but still very damaging.
Thank you everyone that have replied so far to my post, its just this is a tricky one.
Bonnie.

 

[Rob Holmes]

Bonnie,

It's not so tricky.

I mentioned in my last post that you could speak to your webhost and get a copy of everything they receive forwarded to another address too.

Problem solved - you get to read their mail and they don't know that you have - if theres nothing incriminating they'll never know and if there is then you'll be justified in your actions.

It's not so unusual to do this for various reasons from internal security but it could be done just because you feel there is a problem with emails getting lost and you want to make sure that you have a duplicate somewhere (nothing worse than emails getting lost )

Rob

 

[SuffolkDesigns]

e-mails can be difficult legally, the same as normal post, if a letter is sent to a company by post then anyone at that company is allowed to open it, however if it is sent to a particular person at a company it is then classed as private and only to be opened by that person.

Is there a reason why the same would not apply to e-mail ?

If the mail address is info@ or sales@ then it would be reasonable to be read by anyone in the company, if it was sent to john.smith@ then it was sent to that person and should be private.

Another one of those difficult situations......

 

[Rob Holmes]

Heres an interesting article: http://www.ivillage.co.uk/workcareer/survive/workenviro/qas/0,,156474_156940,00.html

A key part is that emails form part of company records.

Rob

 

[SuffolkDesigns]

it says "since they can be considered company records."

I know several companies that have banned the sending of private e-mails as they believe that any opinions or views given by the sender could be thought of as the official company view or opinion.

setting up forwarders to receive copies of all mails sent to employess is also a difficult area, I beleive this would be ok as long as the employees were informed this could happen.

 

[Rob Holmes]

Sure even just in general terms like..

All emails are considered company property and the sending and receiving of emails is monitored..

Added somewhere in the company handbook.

Rob

 

[dave2005]

Hi again Bonnie,

I'd like to draw your attention to the following article which was published in 2001.

http://www.guardian.co.uk/freespeech/article/0,2763,418935,00.html

The relevent bit is this:

'In July the Regulation and Investigatory Powers Act was passed. It said employers could read employees' emails, but only with their consent. But in October Department of Trade and Industry guidelines gave employers the right to monitor emails without asking first.'

If you believe that reading this employees company email would enable you to prove that he has been acting illegally, or against the interests of the company, you can access his email without his consent. You would need to establish that your reasons for doing so were valid before you did it.

Many people are unaware that their company is liable under the law for any emails sent by their employees, REGARDLESS of any disclaimers they attach to their messages. This means that if an employee uses their company email address to harass someone, or send out pornographic/illegal files then the company can still be held liable for the contents of the email even if they have a cast-iron disclaimer at the bottom of the message.

Several companies have lost in court due to employees sending undesirable emails from their company addresses. The largest fine I know of was Norwich Union, who paid out £450,000 because of a libellous email sent by one of its employees, and that email had a disclaimer on it. Disclaimers may be taken into account by the courts, but they do not offer full protection by any means against legal action.

Why is it that you want to access this person's email? If it is because you believe that he has been using it in a way that could damage your company and you have reasonable grounds to believe this, he'd find it hard to argue that his right to privacy outweighs your right to protect your company from possible litigation, fraud or corporate sabotage.

 

[SuffolkDesigns]

Several companies have lost in court due to employees sending undesirable emails from their company addresses. The largest fine I know of was Norwich Union, who paid out £450,000 because of a libellous email sent by one of its employees, and that email had a disclaimer on it. Disclaimers may be taken into account by the courts, but they do not offer full protection by any means against legal action.

Ouch, thats quite a penalty, especially as NU would have quite alot of funds to back them up in a legal situation. Outgoing mail also can be quite hard to monitor for most small companies as more and more ISP's insist on the use of their mailservers for outgoing mail the mails are not sent through the server where the logs would be more accessable.

 

[Ozzy]

Hi Bonnie,
I am not legally qualified in this field, but I have had experience in getting policies in place should the need be needed !
It is my understanding that if you do not state in your staff contracts/handbook that personal company email may be monitored then you are not allowed to monitor it. This may retrospectively reading personal email too. You will need to get legal advice here, I'd seriously recommend that ASAP.

For the future, you should have your staff handbook updated to include the clause that company email may be monitored. My company stores a record of all emails sent from the company from anyone, and also has an archive of all emails received to everyone in the company. This is actually done for legal reasons due to the nature of my work, but heaven forbid could also be called upon if a situation such as yours came up. My staff contract also states calls are recorded, and again an archive of these are stored and I have email and phone recordings going back over a year.

The important thing here is that your staff contracts must be water tight from day one. I know it doesn't help you right now, but I am mentioning this so that anyone else reading heeds the advice and gets theirs updated.
My staff contracts are very strict. The important thing here is that on paper I look like a strict git to work for, but then I have the freedom for discretion in the day to day running of the business. Personally I am happy for staff to surf the web, use forums, chat on instant messenger, etc, so long as they dont abuse it. My contracts state they are not allowed to so if it is abused I fall back to the contracts.

 

[Cornish Steve]

I'm eager to hear the opinion of the legal types who frequent the forum.

In the US, company email boxes and their contents are the property of the company. It's immaterial whether an employee uses the mailbox to send and receive personal email messages; they all belong to the company. As I understand it, this is settled legal opinion. It's also true of voice mail.

Many companies install tracking software on company laptops, so they probably know what was sent and received even without checking mailboxes.