The recent news that three judges have lost their jobs after being caught viewing obscene material on workplace computers has brought the issue of monitoring employees’ Internet usage into the fore. The judges’ illicit activities presumably came to light as a result of their employer reviewing their Internet usage.

Most employers have systems that maintain daily records of Internet activity, which are logged at various times during the day. These can be searched to identify unusual or illicit activity. However, an employer is not free to undertake any monitoring of an employee’s computer usage it wishes merely because such usage is taking place at work. Monitoring must be done in a way that is consistent with a myriad of legislation, including laws relating to data protection, human rights and telecommunications. There is also a duty of trust and confidence implied into each employee’s contract of employment which may be breached by an employer’s monitoring activities.

A general principle is that any monitoring must be proportionate so that the adverse impact of monitoring an individual is justified by the benefit of such monitoring to the business. The usual purpose of monitoring is to uncover any activities that might expose the company to risk of suit, such as the transmission of confidential information, infringement of copyright, or inappropriate use of company computers.

First, employees must have notice that monitoring will be carried out. The company should have a policy on the use of electronic communications which describes the sort of Internet material that employees are prohibited from viewing. An effective electronic communications policy would contain an express prohibition on visiting sites that contain obscence content (in case any employees are under the misguided notion that it is appropriate to do so while at work). The policy should also warn employees that any inappropriate use of the Internet will be dealt with under the disciplinary procedure.

If any suspicious activity is uncovered during monitoring, it should be investigated. Employers should avoid a knee-jerk reaction when taking disciplinary action. The employee should be given an opportunity to explain their behaviour or challenge the disciplinary findings. This is an important step as there are rare cases of employees successfully justifying their behaviour on the grounds of disability or ignorance of company rules. Finally, any punishment for breach of the electronic communications policy should be applied consistently and fairly.