The UK Employment Appeal Tribunal (the “EAT”), in the case of Atkinson v Community Gateway Association UKEAT/0457/12/BA, dismissed the employee’s claim that his right to privacy had been infringed, and confirmed, more generally, that an employer will be entitled to monitor its employees’ workplace emails and Internet use where a clear policy is in place.
The employee, Mr Atkinson, was claiming constructive unfair dismissal. In the course of investigating his conduct, the employer accessed Mr Atkinson’s emails and discovered he had been sending overtly sexual messages to a female friend and had sought to help her obtain a position with the employer. Mr Atkinson resigned before disciplinary proceedings were completed, complaining they were being conducted in a way that amounted to repudiatory breach.
One point being appealed was whether the Employment Tribunal had previously erred in law in finding 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 found that Mr Atkinson’s right to privacy under Article 8 of ECHR had not been infringed, principally because the employer had conducted the review of the workplace email account during a disciplinary investigation in accordance with the employer’s Internet and Email Acceptable Use Policy (the “Policy”), which the employee had himself written and was responsible for enforcing. The employee therefore had no reasonable expectation of privacy on these facts.
The EAT examined the Policy in detail. It stated (among other things) that all users of the employer’s computer systems were bound by it, that emails would be monitored, including for investigations, and should not be assumed to be private. The EAT held the Employment Tribunal had been entitled to find that “[the employee] must … have known … he could not have expected the emails to his lover containing the material … described and which were not marked PERSONAL/PRIVATE to have been immune from access. On this issue, we understand why… the Tribunal made the decision that [the employee] had no expectation of privacy in relation to the relevant emails.”
The EAT’s decision is binding on the Employment Tribunal and is likely to be persuasive in future similar cases before the EAT and the High Court. This decision is a clear illustration of the importance of employers having a well-drafted, clear email policy that expressly sets out what is and what is not appropriate in relation to workplace emails and computer use. Without the Policy in question, the outcome here might have been quite different.