Employees in the U.S.A. have been finding out to their cost that not only do their employers check their personal e-mails, but they are also liable to disciplinary action if they are found to have been misusing their employers' e-mail systems.

Following one such case, a Texas state court held in a claim for unlawful dismissal that an employer has the right to check its employees' e-mails, even if this means circumventing security codes which the employees have placed on their personal e-mail folders with the employer's permission. In another case, an employee was sacked after circulating an e-mail message which his employer deemed to be inappropriate.

Certainly, the temptation for employees to send and receive personal e-mails at work is great, and a certain amount of personal use is almost inevitable. Accordingly, the question for most employers in Hong Kong is not whether they can prevent their employees from sending and receiving personal e-mails but what they can do to keep such use in check and to enable them to take disciplinary action in instances of abuse.

Strictly speaking under Hong Kong law, personal use of work computers or even telephones without permission is an abuse of an employee's position. Further, on a technical level, it is very straightforward for an employer to check its employees' e-mails and, depending on the nature of the information contained in such e-mails, the employer may well have a wide discretion as to how it uses such information.

However, an employer's right to monitor its employees' e-mails is not limitless. In respect of e-mails which contain personal information, the employer must ensure that it complies with the provisions of Hong Kong's data privacy legislation. In this regard, it is advisable for any employer who is considering monitoring its employees' e-mails to ensure beforehand that its internal data protection policy is sufficiently broad to cover its intended activities and to inform its employees of the contents of this policy.

The extent of an employer's right to take disciplinary action against employees who misuse its e-mail system will also largely depend on its internal policies. If an employer has in place a formal policy setting out the extent to which its employees may use work e-mail facilities together with a disciplinary procedure for cases where such facilities are misused then, provided that its employees are aware of the contents of this policy, the employer will be able to take appropriate disciplinary action in respect of abuses.

In the absence of such a policy, employers risk a breakdown in trust with their employees in the event that they decide to check their employees' personal inboxes and, in some cases, their actions may be unlawful. It may also prove more difficult for the employer to take effective action in the event of an employee's abuse of a work e-mail system as the employer would have to show that its employee had committed an act of gross misconduct in order to justify immediate dismissal for abuse.

First published in the Technology Post Tuesday May 30 2000.