Is It Legal To Check Your Employee’s Browsing History?

Jul 10, 2020
Reading Time: 3 minutes
Written by Alistair Maclennan
With a vast majority of business activities occurring through the internet, today distraction is just one click away. The internet is a tool that has enormously increased productivity, however, it also has the potential to be highly distracting to employees. In worse cases, wrongful internet use by a staff member can cause serious offence to other employees, damage the company’s reputation, or result in legal action. This article discusses whether employers are legally entitled to check employee browsing history and outlines a few measures to take to prevent offending conduct.

Setting clear expectations

In general, it is legal for employers to check employee browsing history. However, the best practice recognised by Fair Work Australia and legislated in NSW is to have a clear IT policy in place. For it to be effective, employees must be aware and educated on the policy. This is beneficial because it sets clear expectations for employee internet use, meaning they know what they are allowed to do, and what they are not allowed to do.

It is very important for any IT policy to include provisions regarding acceptable use. Some factors these provisions should address include;

  • Use of internet resources – such as business-licensed software or chat tools such as Slack and Google Hangouts.
  • Inappropriate material – what is prohibited.
  • Use of equipment – covering the use of equipment like work computers and tablets.
  • Monitoring – what the employer monitors. This regularly includes browsing history and the use of internet materials.
  • Disciplinary Consequences – consequences for breaching the IT policy.

These provisions clearly outline employee obligations regarding internet use, and employer rights to monitor and discipline staff for misuse.

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Why do employers access browsing history?

There are two key reasons behind the need for employers to access staff browsing history;

  1. Ensure employees browsing is not affecting business activities/productivity.
  2. Protect against liability in workplace incidents.

Productivity Issues

Employers may conduct random audits of staff browsing history to ensure they are complying with the business IT policy. Random audits may be conducted if there is a drop in business productivity, or simply on a periodic basis.

Workplace Incidents

Alternatively, it may be important for employers to access employee browsing history when there has been an incident. This is because establishing a breach by an employee of company policy can be crucial in avoiding liability for employee actions. For example, an employee may have accessed inappropriate material such as pornography or abhorrently violent material whilst at work and/or on a business device. If another employee makes the allegation that this took place and was offensive, accessing browsing history may be crucial in proving that it actually did and instituting subsequent disciplinary action against the offender. A failure to do so could open up the employer to liability under sexual harassment legislation for allowing the conduct.

Disciplining Employees

Employee internet uses can be irritating, contrary to business interests, or completely illegal on the far end of the spectrum. However, in many cases, employers must be careful to comply with the requirements prescribed by Fair Work Australia to avoid cases of unfair dismissal.

In general, dismissals must not be unduly harsh, unjust, or unreasonable. To avoid unfairly dismissing employees for their internet use, employers should;

  • Have a clear IT policy in place as part of the employment contract that sets out employee obligations.
  • Ensure employees are aware of the policy and trained on it’s meaning.
  • Monitor for breaches and apply the policy in a consistent and fair manner across all employees.
  • Where less serious/first breaches occur, issue a formal warning.
  • Where more serious/repeat breaches occur, notify the employee of their conduct and give them a chance to respond prior to dismissal.

If you are having issues with employee use of the internet that is contrary to your IT policy, you can always contact an employment lawyer to discuss what to do.

Working from home

COVID-19 has seen the bulk of the workforce shift into working from home. While staff members are largely using their own Wi-Fi networks, business IT policies will still apply if staff are using company equipment. Businesses can police staff activity through the use of installed surveillance software on their devices. Therefore, it is important for employees to only use business equipment for work-related purposes, even when at home. A working from home policy may be valuable to reinforce employee expectations when they are operating out of office.

Key Takeaways

  • Employers are able to access employee browsing history. The Company IT policy sets out its ability to monitor browsing history.
  • Our IT policy clearly sets out employer rights and employee obligations when working or using work equipment.
  • If you need assistance resolving issues concerning breaches of your IT policy, contact an employment lawyer.

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