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5. Your staff online

Your staff are likely to use email or browse the Internet. Their actions have a direct legal impact on you, their employer. This part of the guide covers:

Use of email and the risks of defamation
Bullying or harassment of employees by email
Passing on computer viruses by your employees
Accessing pornographic material on the Internet
Data protection in the workplace

a Defamation
Most email users will have received messages at one time or another which might be considered unwise, or legally dangerous. Part of the problem lies in the immediacy of email. Comments which would never be published if they had to be typed, printed and posted in a letter are often sent to multiple recipients by email before the sender has considered the longterm implications of his or her comments. Worse again, these comments can then be forwarded to many more people, worsening any injury which might be caused.

The law is clear - the provisions of defamation law apply equally to electronic communications as they do to non-electronic. In addition, if an email containing defamatory material is sent by an employee during the course of his or her employment, the employer may be held liable in any court action for damages, even if the email was not authorised by the employer.

All businesses are best advised to draw up an email policy to be signed by all employees. Such a policy should stress that since all emails sent from the business account are effectively company emails, the company will treat very seriously any email which contains defamatory or unsavoury content. Small business representative organisations offer sample email and Internet usage policies for their members' use.

Your company could install automatic scanning software to sift out incoming or outgoing mail containing unsavoury content. Again, you should inform employees that such software has been installed, and the reasons for its use.

You might also include a disclaimer to the end of all emails transmitted out of your workplace, stating that it is company policy that employees shall not send libellous, inappropriate or defamatory statements. Such disclaimers are not legally binding, but they may begin to reduce the company's liability.

b Bullying and Harassment
If a member of your staff sends an email to another employee containing material which offends the latter, and is based on discriminatory grounds, then this can be considered harassment. The Equal Status Act 2000 defines harassment as taking place"where a person subjects another person ('the victim') to any unwelcome act, request or conduct, including spoken words, gestures or the production, display or circulation of written words, pictures or other material, which in respect of the victim is based on any discriminatory ground and which could reasonably be regarded as offensive, humiliating or intimidating to him or her.

The nine discriminatory grounds listed in the Act are:

Gender
Marital status
Family status
Sexual orientation
Religion
Disability
Race and membership of the travelling community

An employer is legally responsible for harassment and bullying in the workplace unless he or she takes reasonably practicable steps to prevent such harassment or bullying. Employers who take such steps may avoid liability from such acts in any legal proceedings brought against them.

At the outset, therefore, all employers should establish an accessible and effective policy and procedure to deal with harassment and bullying. These measures should be agreed by the employers with relevant trade union or employee representatives.

When an allegation of harassment or bullying is brought to an employer's attention, he or she should investigate the matter fully and without delay. In the context of allegations concerning email,
these will be easier to deal with, given that there is likely to be a permanent record of the alleged harassment.

c eSecurity
There have been cases in the past where viruses were knowingly and maliciously passed on from an employee in one company to an employee in another. Whether or not this is done with the support or consent of the sender's employer, the risk remains that the employer may be liable for the damage
caused by the virus.

You should put in place appropriate policies to ensure that all employees are warned and trained to guard against the introduction of a virus onto your network, or the transmission of a virus onto an outside network. For instance, it is inadvisable to open attachments to emails unless your are satisfied with the authenticity of the communication, even if it appears to originate from a known third party.

Having up to date anti-virus software and an appropriate firewall is highly recommended in the best interests of your company and your customers. Depending on the nature of your business, you
may have a higher level of responsibility - a legal "duty of care" - to do so you may be dealing with confidential customer information, for instance. Some viruses can, if opened, automatically access address books or email logs and replicate and send emails to each addressee. At the very least, routinely scanning communications is in the best interests of the business and your customers.