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Case law: No expectation of privacy in relation to employee's work-related emails

Employers should check whether there is an expectation that communications sent by an employee to and from work are private, before investigating and/or using them in disciplinary proceedings in relation to the employee, or risk breaching human rights law.

Legal Alert

This update was published in Legal Alert - June 2016

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

An employee – a clinical manager in a hospital - anonymously sent malicious and unpleasant emails to various colleagues and managers, from email addresses he had set up, after another employee broke off her relationship with him.

He was arrested and suspended from work on full pay, but not charged. During the employer's investigation, the investigating manager met with the police and was shown their evidence. This included photos (of the employee's home and of a piece of paper showing the email addresses from which some of the emails had been sent) taken from the employee's iPhone. After disciplinary proceedings, the employee was dismissed for gross misconduct.

He brought multiple claims against his employer. He claimed, for instance, that his employer had breached his right to a private life under Article 8 of the European Convention on Human Rights (ECHR) by looking at his emails and iPhone photos.

The Employment Appeal Tribunal ruled that he had no reasonable expectation of privacy under Article 8 because:

  • His conduct had an impact or potential impact on work-related matters including his relationship with his employer
  • The emails were sent to the recipients' work addresses
  • Their content related (partly) to work matters
  • Their content affected the recipients' wellbeing (in relation to which the employer owed a duty of care) and their ability to do their jobs

Other relevant factors included:

  • The employee's senior position and the fact he was subject to professional standards

He had accepted the use of that material during the investigation and disciplinary proceedings

However, the EAT did say that correspondence and communications can still be private, even when sent from work, if there is a reasonable expectation that they remain private. It made clear that whether or not there is an expectation of privacy in an individual case must, however, depend upon the facts and circumstances of that case. However, in this case, there could be no such expectation.

It also stated that the rules applied equally irrespective of whether the correspondence or communication was publicly available, such as emails; or held privately, such as photos on an iPhone.

Operative date

  • Now

Recommendations

  • Employers should::
    • Check whether there is an expectation that correspondence and communications by an employee to and from work are private, meaning that human rights law protects them, before investigating and/or using them in disciplinary proceedings in relation to the employee
    • Ensure they have a proper email and communications policy, the contents of which are made known to staff

Case ref: Garamukanwa v Solent NHS Trust UKEAT/0245/15/DA

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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