The Employment Appeal Tribunal has held that it is not an unlawful interference with an employee’s private life to use work emails in a disciplinary procedure, which were discovered during a disciplinary investigation.
In the case of Atkinson v Community Gateway Association, Mr Atkinson, working as Director of Resources was investigated by his employer Community Gateway Association (a housing association) after a large financial overspend was discovered.
During the course of the investigation it transpired that Mr Atkinson had been in a relationship with an employee of another housing association. Mr Atkinson had sent a large number of emails to this employee from his work email account. Many of these emails were of an overtly sexual nature. The emails also contained information about Community Gateway Association’s business and encouraged the employee to apply for a job with them. None of the emails were marked “private and confidential” and were in violation of Community Gateway Association’s email policy, which Mr Atkinson was familiar with having written it himself.
The EAT upheld the principle established by the Court of Appeal in X v Y (2004) when it held that a right to private life depends on all the circumstances of a particular case and in particular hinges on whether the conduct is in a private premises and if it is not whether there is a reasonable expectation of privacy for that conduct.
The EAT in Atkinson v Community Gateway Association determined that Mr Atkinson could not expect emails sent from his work email which were not marked as being private and confidential to be regarded as such and that his employer was not obliged to overlook these when investigating.
Employers should note that the EAT took into consideration in its ruling the existence of the email policy and Mr Atkinson’s detailed knowledge of it. Employers should therefore ensure they have stringent and robust email and social media policies in place whilst employees should take care to ensure they do not fall foul of these.
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