Employment law outlook

Citation

Pitt, M. (2006), "Employment law outlook", Human Resource Management International Digest, Vol. 14 No. 4. https://doi.org/10.1108/hrmid.2006.04414dab.001

Employment law outlook

What do you typically do when you get to work in a morning? Like millions of others, you probably make yourself a coffee, read the post, fire up your computer and check your e-mail.

So common has this routine become that it is hard to remember the time – a mere 15 or so years ago – when e-mail, at least in the UK, was restricted to a small number of university academics who exchanged learned papers on what was then known as Janet, the Joint Academic Network.

With the rise of e-mail from plaything of geeks and boffins to indispensable tool of the modern business world has gone a change in the way the law expects companies to deal with the e-mails they send and receive.

When most written business communications were on paper and kept in rows of filing cabinets, it was relatively easy for businesses to produce documents proving that they acted in a certain way and that they complied with legal regulations.

Today, though, around three-quarters of all discovery requests in legal cases are for e-mail. It is therefore vital that e-mails be archived so they can be retrieved successfully. Firms that cannot retrieve the information required by the courts may be fined.

What does this mean for companies?

Fortunately, technology provides an answer to the problem that technology itself has created. Now that the cost of storing data electronically has fallen, I advise firms to archive all incoming e-mail as it arrives in the company and before it is delivered to the recipient. Outgoing e-mail should similarly be archived before it is sent outside the organization.

The reason for storing all e-mail in this way is that individual employees cannot be expected to know which e-mails need to be retained and which they can safely delete.

The company’s e-mail policy should state that staff may have access only to their own archived e-mails, and should not be able to delete them from the archive.

Companies should then categorize their e-mails according to content and give different retention periods to each category. Any spam that gets through the office’s normal filtering procedures should be retained for the shortest period. E-mails that deal with contractual, legal or commercially sensitive matters should be kept for longest. Obviously, firms should also ensure that their e-mail storage policy complies with data-protection legislation and does not infringe the right to privacy.

While some firms seem to believe that it may be cheaper to pay any fines they may incur rather than introduce a proper e-mail retention policy, this is short sighted. The law regarding e-mails is still developing and we can expect a tightening of legislation as scandals come to light.

The law is still developing in another area of internet use – “blogging”, which relates to the modern trend of keeping an online weblog, or “blog”, for short.

In 1998 there was only a handful of weblogs, all kept by internet enthusiasts who had mastered the complicated process of creating one’s own website. They used these sites to present links to little-known corners of the web and to current news articles they felt were worthy of note. Often they added their own commentary.

By the turn of the century, software developments had made it as easy to create a weblog as to send an instant message. It then became possible for anyone with access to a computer to write their own weblog. And with the massive expansion in the use of weblogs came a change in their character, to the journal style we now have.

Today’s “bloggers” pontificate, remember, dream and argue online. But when they type out what they may think is a harmless account of their day at work, it can end up costing them their job. The term “dooced” has been coined to refer to someone dismissed for something they wrote on their blog or website.

A Waterstone’s employee who criticized the bookseller in a weblog was sacked for gross misconduct. And a financial-services firm dismissed an employee for breaching client confidentiality after he made comments about company partners and clients in his weblog. The comments were judged to be “severely prejudicial” to his firm’s good name.

Most employment contracts lay down that employees must keep confidential any information related to their employer that they glean during their work. I therefore advise any employee to think very carefully before mentioning work in a blog. Employers, meanwhile, should have a clear policy on computer use in general and blogging in particular, so that employees know where they stand when they commit their thoughts to cyberspace.

Mike Pittan employment-law partner at UK solicitor Pearson Hinchliffe, examines some of the legal implications of information and communication technology.