Tribunal decision shakes up personal use of office email

Employees who use their company account for personal email exchanges have received a wake-up call after an employment tribunal ruling that the privacy of such messages is not protected.  Sarah Whitemore, Employment Partner, reviews the recent case, Atkinson v Community Gateway Association, in which Mr Atkinson failed in an attempt to have the content of personal messages he sent from his work email account excluded from a disciplinary investigation.

Towards the end of 2010, the Community Gateway Association discovered a £1.8 million overspend.  Mr Atkinson was informed by his employer that his position was untenable and was offered an exit package which Mr Atkinson refused.  He was then suspended by the Association pending disciplinary proceedings.

It was during this investigation that email messages were discovered between Mr Atkinson and an employee at another housing association with whom he was having a relationship.  As well as overtly sexual content, the email exchanges also included a suggestion that the woman concerned should apply for a job with Gateway.  Mr Atkinson helped her with her job application, told her what to expect at interview and suggested to a colleague that she should be appointed without disclosing his personal relationship with the employee.  These points were added to the disciplinary proceedings.

When the emails were used as part of a case against him, Mr Atkinson tried to claim a right to privacy as set out in Article 8 of the European Convention on Human Rights (ECHR) which provides that, ‘everyone has the right to respect for his private and family life, his home and his correspondence’.

But both the first Employment Tribunal and the Employment Appeal Tribunal did not agree.  The tribunal said: “What is ‘private life’ depends on all the circumstances of the particular case, such as whether the conduct is in private premises and, if not, whether it happens in circumstances in which there is a reasonable expectation of privacy for conduct of that kind”.  They concluded that in the circumstances, Mr Atkinson had no reasonable expectation of privacy, despite his Article 8 ECHR rights.

The emails violated the association’s email policy, which had been drafted by Mr Atkinson himself, and the Tribunal pointed to the fact that the messages were not labelled “private and personal” – as recommended in the policy that he had drawn up.

This case is an important ruling, but it does not give permission for employers to delve through individual emails without good reason.  The biggest lesson is that companies should ensure they have a clear policy on private use of company email accounts.  If they do not want staff to use accounts for personal messages, then the policy needs to set out how accounts will be monitored.  In this instance, it was the ex-employee who had drawn up the guidelines, so there was no question that he was not aware of company policy.  Employers should consider incorporating a regular reminder to staff about what’s acceptable.

Although Mr Atkinson has lost out on his right to privacy claim, it is not the end of his unfair dismissal claim, as other aspects of the case have been referred back to the employment tribunal by the appeal hearing.

If you’re an employer and would like more information on conducting disciplinary proceedings or a former employee has brought an unfair dismissal claim against your business, please contact Sarah or the Employment Team on 02380 717717 or email sarahwhitemore@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.