Privacy of ‘Personal’ Emails In The Workplace

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Mr Atkinson was employed as Director of Resourcing for Community Gateway Association (CGA). An investigation was being carried out by CGA into a £1.8 million overspend. During the investigation, CGA found that Mr Atkinson had been in a relationship with a female employee of another housing association and had been sending overtly sexual messages to her through CGA’s email system which were not marked as being private or personal. This was in breach of CGA’s Email Policy which Mr Atkinson had himself written. Mr Atkinson resigned from his position before the disciplinary process had been exhausted claiming that the proceedings were being caried out in a manner which amounted to a repudiatory breach.

He brought various claims against CGA in the Employment Tribunal including a claim for constructive unfair dismissal based on a fundamenal breach by CGA in looking through his emails. CGA made the claim that by sending messages of this type through their email system amounted to gross misconduct which therefore prevented him from making a valid claim for constructive dismissal and that his misconduct had already destroyed the employment relationship between him and the Company. The Employment Tribunal struck out his claims ruling that the claim could not succeed as a matter of law as Mr Atkinson was in repudiatory breach of contract. Mr Atkinson appealed against this decision.

The Employment Appeals Tribunal (EAT) allowed the appeal stating that the prior repudiatory breach of contract on Mr Atkinson’s part did not prevent him from terminating his contract as a result of the way CGA treated him. However, his prior breach should be taken into consideration when calculating the amount of compensation he would be due which could be reduced by up to 100%.

In respect of the claims relating to the alleged invasion of his privacy by viewing his private emails, the EAT found that as the emails had been sent from his work account and were not marked ‘private’ or ‘personal’ as required in the policy that he wrote, to keep such emails confidential, he did not have any reasonable expectation of privacy in respect of the emails and there had therefore been no breach of his privacy by CGA.

We recommend that employers review their email and internet policies and remind employees of their existence and the extent and purpose of any email and internet monitoring that may take place within the business. It is clear from this ruling that where there is a legitimate business reason, email and internet use can be explored without breaching any rights to privacy.

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