In Atkinson v Community Gateway Association UKEAT/0457/12, the UK EAT held that accessing an employee's emails, in the course of a disciplinary investigation into the employee's conduct, did not amount to an unjustified interference with the employee's private life. The employee did not have a reasonable expectation of privacy, in circumstances where he had sent emails from his work account in breach of the email policy, which he himself had drafted, and was responsible for enforcing. In addition, the emails were not marked “personal/private”.

Background  

Article 8 of the European Convention on Human Rights (ECHR) provides for the right to respect for private life.  The European Court of Human Rights decision in Copland v United Kingdom [2007] ECHR 253 shows that an employer risks breaching Article 8, by monitoring an employee's telephone, e-mail and internet usage, without having an 'acceptable use' policy in place, or otherwise informing an employee of the monitoring.

Facts

Mr Atkinson was the Director of Resources at a housing association, Community Gateway Association (the Association).  He was suspended in late 2010, pending disciplinary proceedings, after the Association discovered an overspend of £1.8 million.  

During its investigations, the Association discovered that Mr Atkinson had been in a relationship with a female employee at another housing association.  Mr Atkinson had written the Association's email policy, and in breach of the policy had sent overtly sexual emails to the female employee, which had not been marked private or personal.  He had further encouraged her to apply for a job with the association and had assisted her in doing so. These issues were added to the disciplinary proceedings. 

Mr Atkinson resigned with immediate effect, before the disciplinary hearing had finished, and brought tribunal claims including a claim for constructive dismissal.  At the full hearing, the Association successfully applied to strike out his constructive dismissal claim.   

The tribunal found that Mr Atkinson was barred from claiming that he had been constructively dismissed because of his own prior repudiatory breaches of contract.  

The tribunal concluded that Mr Atkinson's use of the Associations email system was not subject to the direct application the ECHR, as the Association was a hybrid authority, and the emails were not sent in discharge of its public functions. However, even if Mr Atkinson could directly rely on a breach of Article 8, it is not an absolute right, and only applicable if he had a reasonable expectation of privacy, and on the facts he had no such expectation.  In addition, the Association's accessing of his emails was a proportionate means of pursuing legitimate aims and therefore did not breach his Article 8 rights.  

Decision

The EAT upheld Mr Atkinson's appeal in relation to the constructive dismissal claim.  It held that an employee is not barred by his own prior breaches of contract from claiming constructive unfair dismissal.  However, it found that compensation payable could be reduced by up to 100%, if it was established that the employee would have been fairly dismissed, had the employer known about the employee's original breach.

In regard to Article 8, the EAT held that there had not been an unjustified interference with Mr Atkinson's private life, and that in the circumstances he had not had a reasonable expectation of privacy.  The fact that Mr Atkinson had used the email system in breach of the Association's email policy was discovered as a result of its legitimate investigation into his conduct.    In respect of the expectation of privacy, the EAT held that the tribunal had been entitled to take the wording of the policy and the fact that Mr Atkinson had written it into account.  He could not have expected emails sent from work, and not marked "personal/private", to have been overlooked by the Association in its investigation of his conduct. 

Comment

This case serves as a reminder that employers can monitor employees' email correspondence and internet usage, where necessary for the legitimate interests of the employer.  However, the Irish Office of the Data Protection Commissioner has warned, in its Guidance on Monitoring of Staff, that in the absence of an 'Email and Internet Acceptable Use Policy', employees may have a reasonable expectation of privacy in the workplace.  

It is vital that employees are informed of the existence, extent and purpose of any email and internet monitoring.   Employers should, ideally, provide employees with a copy of the policy on induction, and provide refresher training on its contents, and/or ensure it is accessible in any employee handbook stored on the company's intranet.