A recent Employment Court decision could have serious ramifications for email and Internet-use policies in the workplace, says an IT specialist lawyer.
Craig Horrocks, a partner in Auckland law firm Clendon Feeney and a Computerworld contributor, has studied a recent judgment from an Employment Court case involving Tuckers Wool Processors in Napier. In the decision, which at first appears to have little to do with IT employment issues, Judge Tom Goddard ruled the company couldn't test employees for drugs and said confidentiality provisions in the employees' employment contract were an undue invasion of their freedom of expression.
Horrocks says however that the Tuckers case is a landmark decision, particularly in light of employers becoming wary about what material is circulating on company networks and concerns about personal use of email. He says many employers are installing content filters to check email, which he believes invades employees' privacy. AUPS (acceptable use policies) are also being introduced covering email and Internet use. Many are drafted by IT people and have authoritative statements such as: "The company reserves the right to inspect all email". This addresses scenarios where an employee defames someone in a personal email, putting the company at risk of defamation.
Horrocks says this must be viewed alongside Judge Goddard's statement that even with the Health and Safety and Employment Act behind them, companies can't adopt drug testing to determine if an employee is fit for work — even though a company could risk criminal prosecution under the Health, Safety and Employment Act if they suspect an employee is impaired but don't stand them down. If they do they risk harming the employee's reputation and could face accusations of constructively dismissing them.
Horrocks notes that Judge Goddard also says you can't restrain employees from using a company's confidential information if the company doesn't have the reputation it's supposed to deserve. "It cannot invade the employee's freedom of expression."
"Now, can you imagine what Judge Goddard's going to say if they [content filters and AUPs] pop in his court? … Goodness knows what he's doing to do over the issue of the things as trivial — but obviously invading employees' privacy — as AUPs and content filters."
Unless the decision is reversed on appeal or countermanded in legislation it poses considerable risks for employers who are introducing things like AUPs. Horrocks says the government is understood to be unhappy with many Employment Court decisions and "a lot" of its decisions have been reversed at the Court of Appeal.