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Tribunal decision shakes up personal use of office email

An employee has failed in an attempt to have the content of personal messages he sent from his work email account excluded from a disciplinary investigation.

The messages were discovered during an investigation into Mr Atkinson, the former director of resources with Community Gateway Association, after disciplinary proceedings were launched in late 2010 following the discovery of a significant overspend by the association.

Mr Atkinson had been emailing an employee at another housing association with whom he was having a relationship. As well as overtly sexual content, the email exchanges also included a suggestion that the woman concerned should apply for a job with Gateway, and provided her with detailed advice on the selection process.

When the emails were used as part of a case against him, Mr Atkinson tried to claim a right to privacy as set out in Article 8 of the European Convention on Human Rights (ECHR) which provides that, 'everyone has the right to respect for his private and family life, his home and his correspondence'.

But both the first Employment Tribunal and the Employment Appeal Tribunal, did not agree. The tribunal said: "What is 'private life' depends on all the circumstances of the particular case, such as whether the conduct is in private premises and, if not, whether it happens in circumstances in which there is a reasonable expectation of privacy for conduct of that kind" and concluded that in the circumstances, Mr Atkinson had no reasonable expectation of privacy, despite his Article 8 ECHR rights.

The emails violated the association's email policy, which had been drafted by Mr Atkinson himself, and the Tribunal pointed to the fact that the messages were not labelled "private and personal" - as recommended in the policy that he had drawn up.

"It's an important ruling, but it isn't a green light for employers to go through individual emails without good reason," said employment law expert Mark Ridley of Band Hatton Button solicitors.

"The biggest lesson is that companies should make sure they've got a clear policy on private use of company email accounts. If they don't want staff to use accounts for personal messages, then the policy needs to set out how accounts will be monitored. In this instance, it was the ex-employee who had drawn up the guidelines, so there was no question that he was not aware of company policy, but it's probably worth considering incorporating some sort of regular reminder to staff about what's acceptable."

Although Mr Atkinson's has lost out on his right to privacy claim, it is not the end of his unfair dismissal claim, as other aspects of the case have been referred back to the employment tribunal by the appeal hearing.

Atkinson v Community Gateway Association (Unfair Dismissal : Constructive dismissal) [2014] UKEAT 0457_12_2108

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