Employee Privacy in relation to Private Email and Social Media

11 October 2016

Partner, Louise McAloon, advises that employees should be made fully aware that there is no expectation of privacy in relation to their work assigned email correspondence and communications, following a recent EAT decision.

Employee Privacy in relation to Private Email and Social Media

The employment appeal tribunal (EAT) has dismissed an appeal in which an employee unsuccessfully argued that his employer was in breach of Article 8 of the European Convention on Human Rights. The employee claimed that his employer was in breach of this law by reading his emails as part of a disciplinary investigation.

Upon reviewing the case, the EAT upheld the Tribunal’s decision that the Claimant had no reasonable expectation of privacy in respect of the emails; which had been sent to a work colleague with whom the employee had a personal relationship. iPhone photographs belonging to the employee were also investigated at this time.

The Claimant - a clinical manager for Solent Trust - had formed a personal relationship with a staff nurse in the hospital. When this relationship came to an end, the Claimant believed that the nurse had developed a new relationship with another colleague. In an apparent vendetta against the nurse and her colleague, the Claimant sent malicious emails to management from fictional email addresses and set up a Facebook profile in the name of the colleague, to which over 150 other work colleagues were added.

Upon investigating the matter, the employer discovered evidence on the employee's iPhone that directly implicated him in this activity and linked him to the anonymous emails. As a result of this discovery, the employee was dismissed for gross misconduct. The employee claimed unfair dismissal but his claim failed. The Tribunal dismissed the argument that his employer had acted in breach of Article 8 by examining matters relating to his private life, The Tribunal concluded that Article 8 was not engaged as the emails had a potential impact on work, and dealt with work related matters.

When the employee made his appeal, it was again dismissed by the EAT with reference to the guidance of Mummery LJ in X v Y on the impact of convention rights in unfair dismissal cases. Whilst finding that Article 8 (the right to privacy) was not engaged on the facts of this case, the EAT further noted that any interference with the Claimant’s Article 8 rights would have been justified by the employer’s need to protect the health and welfare of other employees. The EAT acknowledged that the employer had a responsibility to ensure that employees could go about their employment free from harassment from the person responsible for sending malicious anonymous emails into the workplace.

The disciplinary allegations in this case raised serious concerns regarding workplace conduct, staff relationships, and the judgment of the Claimant who held a senior management position.

Article 8 does extend to protect private correspondence and communications and, potentially, emails sent at work where there is reasonable expectation of privacy. However, there was no such expectation in this instance, as the emails had impacted upon work related matters and they were sent to work addresses of the recipients. 

This case offers a timely reminder to employers regarding the laws surrounding privacy in the workplace. Every employer should ensure - through their policies and training - that staff are fully aware that there is no expectation of privacy in relation to their work assigned email correspondence and communications.

For employment law advice or training on staff policies and procedures please contact Louise McAloon, Partner at Worthingtons Commercial Solicitors, Belfast.



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