Your employer may attempt to monitor your electronic communications if they believe that you are behaving inappropriately, or attempting to set up business in competition with them or perhaps acting in a way that’s contrary to any restrictive covenants. (Corporate espionage is more common than you may think!)
There are various means that employers can use to collect evidence about you, in order to substantiate their own case, or to defend themselves against your claims. To exemplify this, here’s a short case study drawn from an actual employment tribunal case.
Employment tribunal case study
The key question that the Garamukanwa v Solent NHS case below raises is this: can your employer check your emails? As the case study exemplifies, the short answer is: ‘yes, if they are sent from your work email and impact on work-related matters’.
In this case, the claimant was a manager for the NHS trust. He developed a relationship with a nurse. However, things started to go wrong when he became suspicious that the nurse had formed a relationship with a female colleague. He was upset about this and anonymous malicious emails about the nurse were sent from various fake email addresses to management. The nurse also began to think that the claimant was harassing and stalking her.
As a result, the Trust carried out an investigation. They concluded that there were items on the claimant’s iPhone that linked him to the anonymous emails. He was therefore dismissed for gross misconduct.
The claimant brought a claim for unfair dismissal in the employment tribunal. During the proceedings he unsuccessfully argued that his employer had breached Article 8 of the Human Rights Act by looking into matters purely related to his private life.
Article 8 of the European Convention on Human Rights enshrines the right to privacy. It states that “Everyone has the right to respect for his private and family life, his home and his correspondence”.
The Employment Appeals Tribunal decided that Article 8 was not breached (on the facts of this case) by the employer investigating emails and on the basis that the emails had a potential impact on work, and dealt, at least in part, with work-related matters.
It is important to note that Article 8 does extend to protect private correspondence and communications and, potentially, emails sent at work where there is reasonable expectation of privacy.
However, in this case the emails had impacted on work related matters and the emails were sent to work email addresses of the recipients. The emails greatly upset colleagues, potentially affecting their work. This meant that the employment tribunal was entitled to conclude that Article 8 was not breached and the claimant had no reasonable expectation of privacy in respect of such communications.
The lesson to be learned from this case is that if you are going to send emails to colleagues that you would not want your employer to see, make sure you send them from a private email account outside of working hours. Or don’t send them at all!
Top TipsNicola Welchman
Don’t use your work emails for your legal advice
All company computers and phones leave data trails, even if you delete things
Your employer may have the right to monitor your communications
Can employers monitor your communications?
It is illegal under RIPA to monitor live communications, for example to hack into your phone line, unless you have been made aware that calls are monitored. What it legal however, is for your employer to look into your previous communications, including your work emails, by examining the hard drive on your machine or data stored on the server.
Skype instant messenger, for example, stores written ‘chat’ conversations on Excel files on the hard drive of your actual computer. This is not held in the cloud or on Skype servers, unlike with personal email accounts.
The legal situation is less clear so far as personal email accounts are concerned, but it is worth bearing in mind that everything you ever write using a computer can be reconstructed from examining that computer’s hard drive. The only way to be sure that no information can be reconstructed is to put a screwdriver through the hard drive, or to dispose of it in some other way (not that we are suggesting that you do that; we’re just trying to paint a clear picture for you!).
What if I want to see my employer’s communications?
It is your right to make a subject access request to your employer, asking them for all communications regarding you. This would be done to gain evidence to support a case you might have against your employer. Find out more in our article on subject access requests.