MONITORING - 07.09.2022

Can you check messages during unexpected absence?

Reasons for absence

There are many reasons why an employee might be off work unexpectedly. The most common ones are: sickness absence (which might include hospitalisation); an accident; an injury; a bereavement or a family emergency.

Whatever the reason for an unexpected absence, the reality is that your business continues to run and the employee’s work-related emails and voicemail messages might well be stacking up.

Your legal rights

This may lead to complaints and you losing business. So, are you entitled to automatically check an employee’s work-related emails and voicemails during an unexpected absence or do you need their prior permission to do this?

You have no automatic right to look at or play an employee’s messages, even if they are in a work email account or on a work-related device that you pay for and provide. That’s because the law grants employees the right to a “reasonable expectation of privacy in the workplace”.

Lawful interceptions

However, this right isn’t absolute particularly where there’s an unexpected absence. Under the InvestigatoryPowers (Interception by Businesses etc. for Monitoring and Record-keeping Purposes) Regulations 2018 (IPR) businesses have the legal right in certain circumstances to intercept, record and monitor business-related emails without first obtaining employee consent.

Unopened emails

One such occasion is to “check messages in an employee’s absence that appear to be business-related” . With regards to the employee’s e-mails, they “must appear in their unopened state to be business-related.

The IPR don’t grant you unrestricted access rights to view all emails in a work-related account. That means you shouldn’t view anything that has already been opened (although it may be difficult not to) or is clearly personal in nature, even if your rules state that employees are prohibited from using works emails accounts for personal reasons.

Voicemail messages

When it comes to voicemail messages, it’s impossible to tell whether they are work-related or personal in advance of listening to them.

Thankfully, the IPR recognise this and provide that you can just listen to voicemail messages when an employee is absent.

Tip. Whilst you can rely on the IPR to check emails and voicemail messages when an employee is absent from work unexpectedly, staff should be told what workplace monitoring you may undertake, its extent, and why it’s taking place in advance of that monitoring happening.

Tip. We’ve set out the position on potential monitoring in our email and internet and telephone policies (see The next step ).

For an email and internet policy and a telephone policy, visit https://www.tips-and-advice.co.uk , Download Zone, year 24, issue 16.