The case of Argus Media Limited v Mr Mounir Halim  EWHC 42 (QB), is a recent example of the English court being sympathetic to employers by acting to prevent the unlawful use of confidential information by employees or former employees.
In Part 1 we focused on guidance delivered by the court on the types of behaviour and factors that the court will consider when finding employees to be in breach of their duties of fidelity, trust and confidence, and the inferences the court is willing to make.
Here we consider the guidance given to employers by the court in relation to monitoring of employee emails.
The facts of the main claim are detailed in Part 1.
In summary, the respondent, Dr Halim was found to be in breach of the express and implied terms of fidelity and confidence contained in his employment contract with Argus Media Limited (the Company). He had set up a competing business named Afriqom and was found to have, amongst other things, misused the Company's confidential information, solicited clients, and breached his restrictive covenants in doing so.
During his garden leave, Dr Halim failed to return Company documents resulting in his manager becoming suspicious and the Company investigating his Company email account. The investigation revealed numerous examples of Dr Halim emailing confidential Company information to his personal email account and to his wife. Dr Halim argued that the Company's monitoring of his email account was unlawful and in breach of his right to privacy.
The importance of a well-drafted electronic information and communications policy
Under English law, monitoring or intercepting emails without lawful authority to do so can amount to an offence, which can lead to a fine, or in more serious cases, to imprisonment for up to two years. However, intercepting emails is not an offence where the employer has a right to control or operate the email system, or crucially where the employer obtains the express or implied consent of the employee, usually by way of the employee signing up to a well drafted IT policy.
In Argus, Dr Halim had signed up to the 'Electronic Information and Communications Policy' in the Company's Employee Handbook, which provided a right for the Company to access and inspect without notice any emails sent, created, received or accessed using the Company's IT systems.
As a result of this well-drafted policy, the court concluded that the Company had the right to monitor Dr Halim's emails and by doing so, they had not acted in breach of Dr Halim's privacy rights as alleged.
Advice for employers monitoring employee email accounts
To ensure that the monitoring of employee email accounts does not infringe privacy rights, employers should:
- Have a clear and well-drafted written Electronic Information and Communications Policy;
- Explain the policy's extent and the purpose of the email monitoring to all employees;
- Ensure the policy is easily accessible to employees via the employer's Intranet and/or employee handbook;
- Ensure monitoring is carried out in the least intrusive way and only relates to searching for work related material; and
- Advise employees to mark private emails accordingly.