To Spy or Not To Spy?…

Posted on June 20th, 2012 by Chrissie Lightfoot

Guest blog post by David Rosen, Partner, Darlingtons Solicitors.

As an Entrepreneur in a start-up business, you might adopt a certain outlook as to whether others share your dream, or wish to steal it from you, or perhaps wish to impose their dream on yours, which may in itself lead to a series of nightmare scenarios:

i. You may be the type who believes everyone shares their dream, and is and will therefore work in a certain way to fulfil a common goal;

ii. You may take a view that it is your dream alone, and everyone else around you by way of co-worker or employees, are just there to achieve your objective;

iii. You may consider that your dream is not to be shared, and that you should not trust anyone because they might be out to scupper or copy your dream;

iv. You may be somewhere in-between those views.

One might think that spying and monitoring emails and other forms of communication is illegal. It is likely to be illegal, and in any event, inadmissible as evidence if the person being recorded and monitored, does not know that they might be so recorded and monitored from time to time during the course of their employ, and for what purpose.

Is it acceptable to spy on work-colleagues? What is the ultimate aim in doing so?

Why would you spy on your colleagues in the first instance? A common reason to do so is for security and training purposes. What does that mean? It means that fraud and other misdemeanours, occur when someone at work is either in financial trouble for reasons sometimes out of their control, and rationalises that stealing or taking or abusing information in their office as justifiable. This 3rd part of the well-known ‘fraud triangle’, is that an opportunity arises at work to do something naughty because systems and discipline within an office are not upheld, and in some instances no such systems ever existed, which raised dramatically the opportunity for fraud to be committed.

Should other staff know about it? Should results be reported back to the other employers and employees, and if so, how should it be presented?

The current thought and perceptions on this subject from the Association of Certified Fraud Examiners, based in Texas, is that there should be frank and open discussions with all staff, ideally through focus-groups created within the office to consider any weaknesses in operational systems, anyone who is volatile and likely possibly to have the propensity to rationalise that taking from their employer is wrong.

Policies should be mooted with staff and employers alike in order to ensure openness and transparency especially when times are hard financially, and anything out of the ordinary may be considered a misdemeanour.

Policies should be in place for the ultimate protection of both employers and employees. There is nothing worse than covertly recording or monitoring someone, and for them, or others to learn of it. How would that affect morale? Considerably, I would guess? People’s insecurities would increase, together with volatility of job security, hours etc…

Instead, the focus should be on tailor-making policies to suit your business and business interests, to reduce the risk of the possibility of fraud, and to prevent fraud or other misdemeanours occurring. That way, everyone knows where they stand, and what is and what is not expected of them.

Typical policies may include the following:

1. A whistle-blowing policy;

2. Anti-corruption and bribery policy;

3. Data Protection policy;

4. Electronic information and communications systems policy;

5. Monitoring and search policy;

6. Social media policy.

David Rosen

Solicitor-Advocate, Partner and head of Litigation at Darlingtons. David is a Certified Fraud Examiner, a working member of the Fraud Advisory Panel, and a member of the London Solicitors’ Litigation Association. He is also a visiting Associate Professor of Law at Brunel University.

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This entry was posted on Wednesday, June 20th, 2012 at 3:43 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.

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