Are you being watched? Employers monitoring your communications
So far in this evidence section, we have focussed on what evidence you the employee can collect in building a case against your employer, and the forms of evidence that can legally be used to substantiate your claim. Here we look at what means employers can use to collect evidence about you, in order to substantiate their own case, or to defend themselves against your claims. To help with this, we use a case study drawn from an actual Employment tribunal case.
Employment tribunal case
The key question that the Garamukanwa v Solent NHS case gives rise to 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 i-phone 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.
Outcome of the employment tribunal case
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 an employer investigating emails. It considered that Article 8 was not breached 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. The Employment Appeals Tribunal found that it was right to examine the Claimant’s judgement as a manager.
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!
Can employers monitor your communications?
As you may be aware, your employer may attempt to monitor your electronic communications if they believe that you are attempting to set up business in competition with them or perhaps acting in a way contrary to any restrictive covenants (see chapter 3.6.). In general corporate espionage is more common than you may think.
TOP 3 TIPS
- 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
It is illegal under RIPA (the terrorism act) 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 back into your previous communications, including your work emails, by looking at 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 on 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!).