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Case law: Court clarifies when employers can access employees’ emails to family and/or personal email accounts

Employers may be able to access an employee’s work emails, even to family and/or to their personal email accounts, if they include appropriate authority in their work policies, act in a reasonable and proportionate way and comply with any conditions in those policies, according to a recent ruling.

August 2019

This update was published in Legal Alert - August 2019

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 ex-employee who had set up a competing business tried to argue that post-employment restrictions in his old contract of employment stopping him doing so did not apply. His argument was that the former employer had read personal emails sent to his wife from work - a breach of his right to privacy under human rights laws which also breached the implied duty of trust and confidence between an employer and employee - so his former employer could no longer rely on the restrictions.

The ex-employer argued that the reasons it had accessed his emails included that:

  • It was entitled to do so under its electronic information and communications policy in order to investigate potential breaches of contract, and was not required to tell an employee it was doing so.
  • After he had given notice, his manager suspected he was not handing work over properly, and therefore asked to access his emails.
  • The emails to his wife and his personal account were not private emails. Those to his wife were work-related, and those to his personal account contained confidential information belonging to his employer.

The court found that the ex-employer’s policy was reasonable and its investigation had been ‘appropriate’. In particular, it agreed that the emails were work-related and not private communications.

It said that even if the ex-employer’s action had breached the employee’s right to privacy, that did not mean it had automatically also breached the implied duty of trust and confidence. The post-termination restrictions on the ex-employee were therefore enforceable.

Operative date

  • Now

Recommendation

  • Employers wishing to access an employee’s work emails should ensure they have appropriate authority to do so under their policies – which can include a right to access emails to spouses, relatives, etc and/or to personal email accounts, if they are work-related – that they act in a reasonable and proportionate way, and they comply with any conditions in those policies.

Case ref: Argus Media Ltd v Halim [2019] EWHC 42

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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