It is clear that an employee’s privacy is important. The law prohibits uncontrolled access to an employee’s private communications. However, it does provide the employer with some rights of access under certain conditions. The Interception Act allows an employer to intercept an employee’s communications. There is also the Protection of Personal Information Act (POPI) that is important and employers should observe its provisions.
The content of an employee’s e-mail may be read under four conditions. They are:
- When the employer has been authorised in writing by the employee to do so;
- When the employer has very real grounds for suspecting that some form of abuse is taking place;
- When the employer has informed the employee concerned in advance that the e-mails might be intercepted; and
- When the e-mail was sent in the course of the employer’s business.
It has to be borne in mind that at present it is unclear what the Interception Act means by the phrase ‘in the course of your company’s business’.
If this includes private e-mails sent during business hours, then this may give the employer the right to read them. But if it only means the employer can look at e-mails sent for business reasons then this is not a licence to read private emails, even if they are sent during business hours.
Until the courts provide clarity on this issue, employers need to tread extremely carefully in this area. The four instances in which employees’ e-mails are allowed to be read will ensure that employers do not infringe on employees’ privacy.