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Alice H
Alice H, Solicitor Advocate
Category: Employment Law
Satisfied Customers: 2847
Experience:  Partner in national law firm with 20+ years legal experience
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I sent personal emails to my friend, who is also a work colleague,

Customer Question

I sent personal emails to my friend, who is also a work colleague, on the comany email, as this is allowed. I was going through a particularly bad time in work and was having a bit of a moan in the emails. She went on leave and left her email account open to a colleague to deal with new incoming emails. This person trawled through all of her emails and targeted all emails from me. She then copied any that she found that she felt she could use against me. She then shared them with my manager and I am now being disciplined because of the nature of the content.
Our email policy has never been officially circulated to all staff. We have never been trained on the required standards etc. The policy itself is not clear and does not specify what is acceptable/ unacceptable, how personal emails should be dealt with, what will/will not be monitored or how it will be monitored, or explains the privacy policy - I have just been told that no emails are actually private, which I was completely unaware of.
Can you tell me:-
1. Can they use the email they intercepted in this way to discipline me. The emails were not addressed to the individual who intercepted them,and she had no need to access or copy them other than to get me into trouble
2. If my employer has not specified or communicated a clear specific email policy relating to personal emails, privacy of emails, - or not not as they case may be, the monitoring process including the consequences of breaching the policy, can they discipline me.
I feel that that I have 2 grievances here, one in that my personal emails to a friend were intercepted and were then used against me without her or my permission, and secondly my employer has failed to clarify the required standards but now want to discipline me for non adherence. Does not seem right but I know the law can be fickle. Can you please help
Submitted: 3 years ago.
Category: Employment Law
Expert:  Alice H replied 3 years ago.
My name is Alex Hughes and I am a Solicitor based in London. I'm happy to help with your question today.

What was the gist of the emails? Were they offensive, abusive, derogatory in anyway?
Customer: replied 3 years ago.
Well to a degree. Before I explain any further can you tell me if this will be published anywhere or is it confidential?
Expert:  Alice H replied 3 years ago.
This is live on the web. But no names are published - you are "JACUSTOMER-9f2tbq4u". So long as no names are mentioned then a web search will not reveal anything about you or the company. Hope this helps.
Customer: replied 3 years ago.
Name calling, no swearing and moaning about certain pieces of work taking an eternity to complete.
Expert:  Nicola-mod replied 3 years ago.
Hello,

It seems the professional has left this conversation. This happens occasionally, and it's usually because the professional thinks that someone else might be a better match for your question. I've been working hard to find a new professional to assist you with your question, but sometimes finding the right professional can take a little longer than expected.

I wonder whether you're OK with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!
Nicola
Customer: replied 3 years ago.
Hi, no I'm ok to wait until you find someone suitable. Thanks
Expert:  Nicola-mod replied 3 years ago.
Hello,

We will continue to look for a Professional to assist you.

Thank you for your patience,
Nicola
Customer: replied 3 years ago.
Thank you
Expert:  Nicola-mod replied 3 years ago.
Hello,

No need to reply further at this time. We will continue to look for a Professional to assist you.

Thank you for your patience,
Nicola
Expert:  Alice H replied 3 years ago.
Good evening.

I had to consider the issues you raised carefully before answering your question, so thanks for your patience.

So to answer the questions you raised:

1. The person who identified the offending emails has not broken the law. She had permission to access the computer and has identified some wrong doing. She has not breached the Computer Misuse Act 1990 and is protected from disciplinary action as a "whistleblower" under the Employment Rights Act 1996.

2. Even where the employer has not set out a clear policy on this issue, there is a "relationship of trust and fidelity which exists between an employer and employee". This means amongst other things that you will act in a manner that will promote your employers business and not do anything harmful.

So, in short, I think the employer could use emails sent to a work email address from a work compoter in disciplinary proceedings to decide whether your actions amount to misconduct.

The next question is whether the employer could use private emails which are passing between to friends who are expressing personal views.

The monitoring of workplace communications is protected by data protection laws and you have a right of privacy. However, your employer can monitor your use of the phone, computer, internet, e-mail or fax in the work place to establish facts which are relevant to the business, to check that procedures are being followed, or to check standards, detect crime or to
check for unauthorised activity.

In your case the email was was clearly on your work computer, to a work colleague and makes mention of work related issues. As such there is a prima facie argument that the emails are relevant to consider whether misconduct has occurred.

You can certainly argue that the emails are private and you have the right to express an opinion. But i think this argument will fail if the name calling and moaning about other people is on a work computer in work time at your employers expense. Doing it in your own time and your own expense on your personal email would have been different , of course.

I'm sorry if this is not great news but I have to give you an honest and objective opinion. I hope this helps makes matters a little clearer for you.

Alex
Customer: replied 3 years ago.
Alex thanks for your response. I have a few more points for consideration. I did not work standard hours and as such often worked in excess of 60 hours a week working late nights and sometimes weekends, so to prove that I did this in 'work time' would not be possible.
Also, at the bottom of each email there is a disclaimer stating:- 'This email and any attachments are confidential and intended for the addressee only. If you are not the named recipient, you must not use, disclose, reproduce, copy or distribute the contents of this communication. If you have received this in error, please contact the sender and then delete this email from your system'
This statement has never been explained to employees, nor has the personal email policy or the company privacy policy and the fact that no emails are actually private. Due to the complete lack of clairity and guidelines regarding the policy, and based on this and the strap line above,, the expectation among employees is that all emails are private. This can be proven by emails that I have received from senior managers, who also clearly do not understand the policy either and correspond in a similar manner to me, on occasions derogatory banter. So this proves that due to the lack of clear guidelines there is an expectation among staff is that personal emails are private.
Finally, if the email communications policy is so important, as it clearly is, then why is there not a mandatory module for all employees to sign up to explaining the do's/dont's , monitoring process and repercussions of failure. We currently have at least 12 mandatory modules for such things as bribery, competition law etc. but nothing on emails privacy and standards. In addition, I have reords of previous training modules where compliance was mandatory - I worked in the compliance/regulation team - and, even after training was given (and all records of completion/passing modules recorded) and an amnesty period was given to highlight and resolve all non compliant practices that had been introduced - 3 amnesty periods actually - nobody was disciplined for breaching or continuing to ignore the guidelines, this was despite the possible repercussions of failure to comply, which was outwith the companies control, and was potentially considerable/ damaging to the business.
Would this be a breach of my equal opportunities and employee rights as :- 1. I have not been properly trained in the companies email standards and 2. Where others have been trained in areas which the business deems to be more important - due to the production of the mandatory training modules - and are given an amnesty period however a breach still takes place or continues after the amnesty period, nothing happened, they were not disciplined. Surely this breaches equal opportunities?
Expert:  Alice H replied 3 years ago.
These are all arguable points.

The disclaimer certainly purports to make emails private between two parties who are communicating with each other.

But I think it unlikely that the disclaimer invalidates the protection given to a whistleblower who is protected by law.

You can certainly argue the point if raised but the disclaimer is unlikely to give you much protection when there is an allegation of wrongdoing.

The failure to be given adequate training or have a clear policy in place is certainly helpful to your situation especially if training has been given in other areas.

But I think the lack of training/policy amounts to mitigation rather than a defence.

In other words you may be able to persuade your employer not to take any formal action on this occasion due to their failure to give proper guidance on the topic.

Happy to discuss these issues further if needed.

Alex



Customer: replied 3 years ago.
Alex thanks.
What about the equal opportunities argument, where others, who have been trained and breached the policy, all be it another policy which was equally if not more important, got off scot free, surely this is discrimination of some sort?
Also, I read an article regarding a large multi national company who realised there was a potential problem regarding employee personal emails. Obviously there was a case againt them, and the precident set was that the employees had a reasonable 'expectation' of privacy in their personal emails due to the lack of clear, specific guidelines provided by the employer. This resulted in an amnesty period being given to all employees to delete unacceptable emails, only after the necessary trainng had been provided to all where standards were fully clarified including the privacy policy and acceptable/unacceptable useable terms.
Also, should I not be made aware if my emails were likley to be monitored, is this not a breach of my privacy - If I had know that there was the chance of monitoring or interception then the chances are I would not have sent them.
Would I also have an argument relating to the fact that acts that are deemed to be Gross Misconduct have not been clearly specified or given the necessary level of importance in our mandatory training requirements or guidelines. I'm shocked that they can consider this when the policy is so vague and has not been openly communicated to all.

Expert:  Alice H replied 3 years ago.
These are all arguable points. I will have a look at some case law to see if there is anything on this specific issue which might assist you. Please bear with me while I do this.
Customer: replied 3 years ago.
Alex, I forgot to add that my 2nd line manager had been copied in to some of the emails, and some other managers also, all of these managers were more senior than me and none of them admonished me regarding the content, in fact it was normal/ costom and practice for my function / pier group to communicate in this way. This has also been ignored by the business. Is there a point here I can argue too, custom and practice, acceptance by senior managers? I hasten to nothing as happened to them.
Expert:  Alice H replied 3 years ago.
I've reviewed the problem.

There are no legal precedents or articles that I could find to deal with this specific issue.

I am, therefore, going to opt out so that another expert can have a look at the problem for you.
Customer: replied 3 years ago.
Thanks
Expert:  Alice H replied 3 years ago.
Thanks for your patience.

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