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In this week’s article, Derek McKay, Managing Director of Adare Human Resource Management provides some advice for employers who find that employees are using personal emails and devices for work purposes. This comes on the back of a recent Workplace Relations Commission (WRC) case that found in favour of an employee who was found to be unfairly dismissed for using his personal email account.
Background to the WRC Case
An employee who was a customer relations advisor for a tech distributor was awarded €4,500 after the WRC found he had been unfairly dismissed. The WRC adjudicator found that the actions of the employer in processing his personal data was a “serious departure from the trust and confidence enshrined in a contract of employment”.
The employee had become aware of a product reseller giving false information to customers about the products. He set up an experimental contract with the product reseller using his personal details and email. The product reseller contacted the company who confirmed that the claimant was in fact an employee.
The employer began an investigation and the employee became concerned about his data privacy rights and the fact his personal email was shared in the minutes of a meeting. He said he was told that the consequences of the disciplinary procedure if proven could lead to his dismissal. Before the findings of any hearing were issued, the employee resigned as he feared dismissal and the consequences for his career.
The employer stated that the employee resigned on a voluntary basis and the disciplinary procedure was lawful and reasonable. It argued that the case should be dismissed and there was no evidence he had been driven out of the company.
However, the WRC adjudicator said it was “of note” that one of the allegations raised occurred from the worker’s personal email while logged off from the employer’s IT system. She found the actions of the employer “constituted a repudiatory breach of contract” and said the company’s “processing of the complainant’s personal data without apparent preclearance or complainant consent demonstrated a serious departure from the trust and confidence enshrined in a contract of employment.” And, “it was unreasonable and did not comply with the contractual provision on data protection.”
Use of personal email in the workplace
While this particular case highlights some warnings for employers, it should be stated that the use of personal emails for the purposes of work should not be allowed. There should be clear guidance for employees laid out in the Employee Handbook as well as Social Media Policy.
Apart from the obvious security risks associated with employees using personal email, what they may not realise is that any communications sent from a work laptop or PC is not only accessible by IT, it is also legally owned by the employer if it has been sent on work time.
Use of personal devices for work purposes
We have previously written about employees avoiding using personal devices for work purposes. However, many employers will let employees use personal devices to carry out work tasks, such as tablets, phones and laptops. There are obvious financial benefits for the employer but there are considerable risks.
The biggest risk is security; will the devices have appropriate levels of security software? Is the employer confident that employees won’t share confidential information with other people outside the Organisation? The loss of sensitive or confidential information could lead to the potential loss of business as well as fines from the Data Protection Commission.
An employee’s right to privacy is also a consideration for employers so measures should be in place to be able to differentiate and protect personal information on devices from work-related information.
As with email and social media use, if an employee is using personal devices for work, there should be a specific policy in place. In that policy, it should be clear what information can be accessed by the employer, if the device is to be monitored, how the monitoring happens so that the employee can give informed consent.
If your Organisation needs help in developing policies for the above scenarios, please get in touch with our expert-led team at Shannon Chamber HR.
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