When can employers intercept electronic communication?

Lavery Modise

Lavery Modise

Employees often abuse electronic facilities which are supposed to improve the efficiency of the business.

Examples of this include employees wasting the company's valuable working time by surfing the Internet, playing games, running their own businesses and viewing pornographic material.

Employees could also use email to distribute business secrets. These scenarios can harm a business.

Does an employer have an automatic right to monitor and intercept electronic communication in order to take disciplinary action against an employee?

The Regulation of Interception of Communications and Provision of Communications-Related Information Act, which came into effect in 2005, deals among other matters with the circumstances under which an employer can intercept electronic communication.

It prohibits the interception of any electronic communication by anyone except the sender or the intended recipients, unless prior consent is given, or interception is indirect, due to the normal carrying out of business.

If, for example, the supervisor of an employee is a party or is copied an email sent by an employee which warrants discipline, the supervisor can intercept this email and use it in disciplinary proceedings without obtaining the consent of the employee whom he seeks to discipline.

It's important that employers include in the employment contracts a clause in which employees give written consent for all electronic communications to be monitored and intercepted by the employer.

Employers can also introduce an electronic communications policy which sets out what constitutes acceptable and unacceptable email and Internet usage.

The policy should define various terms such as pornography and stipulate the disciplinary action which can be imposed should an employee be found guilty of violating the policy.

Employers who don't have prior written consent cannot, under the the Interception and Communications Act (unless given the two exception discussed), use electronic communications as proof of misconduct.

Lavery Modise is director at Routledge Modise Attorneys.