In Atkinson v Community Gateway Association UKEAT/0457/12/BA, X claimed constructive dismissal. In the course of an investigation the employer accessed X’s work emails and discovered he had been sending sexual messages to a female friend and had sought to help her get a job with the employer.
X resigned before disciplinary proceedings were completed, complaining that the employer’s conduct in relation to the investigation amounted to a repudiatory breach of contract. The employment tribunal dismissed X’s claims.
X claimed that the Employment Tribunal was wrong to say that the employer's accessing of the employee's emails was not in breach of his right to respect for private and family life under Article 8 of the European Convention on Human Rights (the "ECHR").
The EAT disagreed. X’s right to privacy under Article 8 of ECHR had not been breached because the employer had conducted the review of the email account during a disciplinary investigation in accordance with the employer's Internet and Email policy which the employee had himself written and was responsible for enforcing.
The employee therefore had no reasonable expectation of privacy. The EAT held that the Employment Tribunal had been entitled to find that the employee must have known that his emails were not immune from access.
The fact that the Employer had a clear internet policy appears to have been crucial to this decision.
Our tips are:
- Have a clear Internet and Email policy.
- Spell out what is and is not an acceptable use of work email and computer systems.
- Make it clear that employees should have no expectation of privacy at work when using work computers, e-mails etc.
- When conducting disciplinary investigations make sure that searches etc. are proportionate. Balance the need for a proper investigation as against an overly intrusive search. Consider for example using word searches rather than having a general trawl through an email account.
This is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information contained.