Employee privacy: E-mails sent from business account not confidential says Court of Appeal

In Brake v Guy the Court of Appeal held that an employee who used a central company e-mail account to send personal messages had no ‘reasonable expectation’ that those messages would remain private, and that the employer was entitled to read and share them.

What happened?

The Claimants in this case, Mr. and Mrs Brake, brought a claim for an injunction and damages against their employer, on the grounds that their employer had accessed, retained, and used e-mails which were confidential to them. The allegedly private e-mails had been sent and received by Mrs Brake from the central company enquiries email account, which was operated by her at the time of their dismissal.

The employer claimed that it had discovered evidence of fraudulent conduct in Mrs Brake’s emails and had shared this information with their lawyers and others, for business purposes.

The decision

The Court of Appeal held that the Claimants had no reasonable expectation of privacy or confidentiality. The email account was designed to receive enquiries from customers and although Mrs Brake was in possession of the password for the account, the password belonged to the company, and had been put in place as a security measure to protect the employer’s interests and information, not those of their employees.

It was also relevant that she shared this account with two other employees, neither of whom had used it for sending or receiving personal e-mails and both of whom had replied to business e-mails sent to the shared account for the attention of Mrs Brake. The fact that Mrs Brake and one of the other users of the account were close friends was not relevant to the issue of privacy.

At the same time as the central enquiries e-mail account was set up, separate accounts in the name of the Claimants and others were also created. In the Court of Appeal’s view, the obvious inference was that while these e-mail accounts might be subject to a reasonable expectation of privacy, the central enquiries account was not.

The Court of Appeal found that the burden of proof was on the Claimants to demonstrate that they reasonably expected that the disputed e-mails were private. They had failed to discharge that burden. There was no ‘presumption’ of privacy simply because the content of the e-mails was private in nature. There was no binary division of the emails so that those that were not business-related were automatically considered private and confidential.

What does this mean for me?

This judgement provides some useful practical guidance for employers on measures that can be taken to ensure that they have legitimate access to all e-mails sent from a business account. For example, where a number of employees have access to a central business e-mail address, it may be advisable also create individual e-mail accounts in their names, and to require them to limit any private e-mails to those individual accounts. This sets a clear expectation that the employer may monitor or access any e-mails sent from the central business account.

However, this does not mean that e-mails sent from individual work accounts cannot be monitored in any circumstances. An employer may monitor the flow and content of these communications, provided that the employee is advised in advance that monitoring may take place. Monitoring must not be excessively intrusive, and an employer must be able to justify the extent and nature of the surveillance. It may be helpful to put in place an Electronic Communications Policy to set some clear parameters.

When deciding whether an employee had a ‘reasonable expectation’ that their communications would remain private, an employment tribunal or court will consider all relevant circumstances, including ‘the nature of the activity in which the claimant was engaged’. For example, if an employer reasonably suspects that an employee is involved in fraud or dishonesty, it may be possible to argue that they have waived any right to privacy by their conduct.

If you have any questions or concerns around employee monitoring, or accessing the personal communications of an employee suspected of misconduct, please do not hesitate to get in touch and we will be happy to advise you.