An employee has failed in an attempt to have the content of personal messages he sent from his work email account excluded from a disciplinary investigation.
Personal messages were discovered during an investigation into Mr Atkinson, the former director of resources with Community Gateway Association, after disciplinary proceedings were launched in late 2010 following the discovery of a significant overspend by the association.
Mr Atkinson had been emailing an employee at another housing association with whom he was having a personal relationship. As well as overtly sexual content, the email exchanges also included a suggestion that the other female employee concerned should apply for a position with Gateway, and provided her with detailed advice on the selection process.
When the emails were used against him as part of a case, 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 Employment Tribunal and the Employment Appeal Tribunal, did not agree with Mr Atkinson. 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” and 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 coincidentally been drafted by Mr Atkinson himself, and the Tribunal pointed to the fact that the messages were not clearly labelled “private and personal” – as recommended in the policy that Mr Atkinson had drawn up.
This is an important ruling, but it is not a green light for employers to go through individuals’ emails without good reason.
The biggest lesson from this case is that companies should make sure they have a clear policy on the private and personal 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, but it is probably worth considering incorporating some sort of regular reminder to staff about what is and what is not acceptable.
Although Mr Atkinson has lost out on his right to a 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.
Atkinson v Community Gateway Association (Unfair Dismissal : Constructive dismissal) [2014] UKEAT 0457