30th June 2016

Employer’s access to worker emails condoned in tribunal case

Employers can justifiably access their employees’ private emails if there is a good reason for them to do so, according to Tayside solicitors and estate agents Miller Hendry.

The advice follows a recent employment tribunal case concerning gross misconduct in the workplace, which upheld Solent NHS Trust’s access to a worker’s private emails.

The tribunal held that the investigation into the employee’s emails to a work colleague did not breach Article 8 of the European Convention of Human Rights. The Trust investigated after anonymous malicious emails were sent to a staff nurse, Ms Maclean. The claimant in the case, a clinical manager with the Trust, had formed a personal relationship with Ms Maclean and then suspected she had formed a relationship with another colleague. After anonymous emails were sent to management, Ms Maclean became concerned that the claimant was harassing and stalking her. The employer investigated and found items on the claimant’s iPhone which implicated him and linked him to the anonymous emails.

The claimant, dismissed for gross misconduct, made a claim for unfair dismissal. His claim failed. In the course of the employment tribunal proceedings, the claimant unsuccessfully argued that the Trust had acted in breach of Article 8 by looking into matters related to his private life. Rejecting this, the employment tribunal considered that in this case, Garamukanwa v Solent NHS, the emails were, in fact, work related. The EAT agreed.

Alan Matthew, employment specialist with Miller Hendry, said:

 “What this case shows is that, although Article 8 does extend to protect private correspondence and communications, in certain cases private emails can be investigated. Such was the case here, where an employee’s private emails impacted on work related matters, were sent to work addresses, and distressed colleagues. The EAT was therefore right to examine them, and Article 8 proved irrelevant.” 

For further advice or information on employment law or other legal issues, visit www.millerhendry.co.uk