A nose for trouble: Personal e-mails and professional bother

Once upon a time and not so very long ago, there was something of a distinction between our work and home lives.

Given how rapidly technology has evolved, it's hard to believe that just a few decades ago the idea of even having a conversation while not tethered to a landline would have seemed as though it had been ripped from science fiction or an edition of 'Tomorrow's World'.

Yet we are all now rather reliant upon hand-held devices to run businesses and households alike.

That convenience became particularly convenient during lockdown, when most people were prevented from attending their usual places of work.

However, it has presented employers with a conundrum; namely, how to keep confidential information and trade secrets safe while staff are working remotely.

As the Office for National Statistics (ONS) reported in May, the number of individuals splitting their working week between home and office remains high.

In fact, the ONS noted that the amount of hybrid working had actually increased during the course of the first half of 2022 (https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/employmentandemployeetypes/articles/ishybridworkingheretostay/2022-05-23#:~:text=Since%20then%2C%20the%20proportion%20of,14%25%20in%20the%20same%20period.).

Since the first restrictions intended to curb the spread of Covid-19 were lifted, the debate about whether staff should return to their desks has principally revolved around productivity (https://www.peoplemanagement.co.uk/article/1796133/three-five-worked-home-during-covid-say-productive-there-study-reveals#:~:text=newsletter%20sign%2Dup-,Three%20in%20five%20who%20worked%20from%20home%20during%20Covid%20say,more%20productive%20there%2C%20study%20reveals&text=Three%20in%20five%20(60%20per,home%2C%20a%20study%20has%20found).

However, the question of the integrity of confidential information arose even before the pandemic struck, as a recent employment tribunal ruling has made clear (https://assets.publishing.service.gov.uk/media/6319c8e08fa8f5020b485524/Mrs_M_Massengo_-v-_CPL_Aromas_Ltd_-_3200034_2020_-_Judgment.pdf).

The case was brought by Madly Massengo, a trainee perfumer, who issued proceedings against her then employer, CPL Aromas Limited, for age discrimination, wrongful and unfair dismissal.

Nevertheless, her claims were dismissed after evidence that she had sent "sensitive, confidential information", including formulas and details of the scents made by her employer, from her work e-mail address to a private account.

Out of 22 such messages, eight were described as being "of concern".

Upon discovering what had happened, the firm was "horrified" and sacked her for gross misconduct, a dismissal which led to her legal action.

Mrs Massengo maintained that she had sent the material to her private e-mail account to enable her to work from home.

The tribunal judge disagreed, adding that Mrs Massengo's deletion of some of the e-mails in question showed that she knew what she was doing was wrong and was attempting to "cover her tracks”.

It is not, of course, the first time that there have been such anxieties.

Just over a year ago, it emerged that senior civil servants had expressed worries about the use of a personal e-mail account by the former Health Secretary, Matt Hancock (https://www.thetimes.co.uk/article/6f045ace-d6a4-11eb-a220-6b7b44d7fe64).

Days later, The Times printed allegations by Boris Johnson's former chief adviser, Dominic Cummings, that Mr Hancock and the then Prime Minister had also used a social media group to discuss coronavirus procurement with Conservative Party donors and officials in Downing Street (https://www.thetimes.co.uk/article/e05c5e28-d83f-11eb-8f14-0bb645f59db0).

I should say that there is no explicit legal prohibition on staff sending material to personal e-mail accounts. The simple fact that it happens naturally gives rise to questions about why it should be necessary.

Employers who are concerned about what might happen to confidential information may want to consider having measures in place to monitor what is being sent where, from and to whom.

There are, however, constraints about how that can and should be done.

In the weeks before lockdown, Barclays came in for scrutiny itself when media wrote how its employees were subject to monitoring which deemed toilet breaks as “unaccounted activity” (https://www.cityam.com/exclusive-barclays-installs-big-brother-style-spyware-on-employees-computers/).

Before monitoring of any sort is considered, it's essential to make staff aware of what is going on and, ideally, to consult with them.

Having clear confidentiality obligations in employment contracts as well as robust policies and procedures, such as an IT and communications systems policy, is essential.

Ensuring not only that such policies exist but that they are suitable in the new working world is a fundamental step.

I should point out that it is one thing to have policies in place and another thing entirely for employees to know that they exist and what they actually say.

Making employees aware of policies - and what might happen if they are breached - removes the potential for confusion and strengthens an employer's position.

I have worked with clients in a number of different sectors for a number of years drafting employee handbooks, policies and procedures as well as reviewing and amending those already in place.

Together with employment contracts, they need to be clear about what is expected of staff.

In addition, they need to be practical. After all, they might be legally compliant but not fit for purpose in that they don't reflect what a business does or how it currently operates in the real world.

Remote or hybrid working has been helpful for employers and employees alike in allowing companies to meet significant challenges.

Those opportunities need to be balanced against the possible risks of staff removing commercial information and trade secrets from the office.