Stopping e-mail access to absent employee was unlawful discrimination

Do you have to maintain e-mail access for an employee absent on ill health grounds? Do you cut them off, to protect your confidential information and…

Do you have to maintain e-mail access for an employee absent on ill health grounds?  Do you cut them off, to protect your confidential information and to remove the stress from the employee, whilst ensuring that work matters are picked up by someone else?  An Employment Appeal Tribunal Judgment has upheld that as a justified approach for an employer.  However, in the case of Chawla v Hewlett Packard, the EAT found that the employer did discriminate against the employee on disability grounds when doing so. In that case the employer had acted unlawfully as it had failed to comply with the duty to make reasonable adjustments in not ensuring that the employee was informed in other ways about matters impacting on his terms and conditions. 

The detail

Mr Chawla was absent from work due to stress (which in his case was found to be a disability). He remained employed for a number of years whilst absent, receiving payments under the employer’s permanent health insurance scheme. During that time Mr Chawla’s access to the employer’s e-mail and intranet systems was withdrawn.  As a result he: wasn’t informed about his right to join one share purchase plan; was delayed in joining another; and lost the right to exercise some other share options during some key dates. His argument, that it would have been a reasonable adjustment to ensure he was informed in a timely manner about developments to his terms and conditions, was successful and that finding has been upheld by the EAT.   

The Tribunal and the EAT accepted the employer’s reasons for closing down access to the systems for those on long term ill health grounds.  The employer’s concern about sensitive information falling into a third parties hands where access was maintained, was accepted as justifying the system-block.  It was also held not to amount to harassment of Mr Chawla as he had alleged. An instruction to colleagues not to communicate with him during working hours was also found to be justified and held not to amount to unlawful harassment. However that explanation did not justify the employer’s failure to tell the employee about things which still impacted upon him and his terms and conditions.  A reasonable adjustment was to keep him informed in another way.  As a result the failure to make that adjustment was unlawful disability discrimination.

What does this mean for me?

This Judgment does provide support for you should you wish to block long term sick employees from your internet and e-mail systems.  Do think through why you need to do so and what it is intended to achieve.  Do check what you say you can do in contracts and policies. However such blocks can be justified.

The key lesson from this Judgment is the importance of ensuring that absent employees are kept informed of developments which affect their terms and conditions.  This may be most likely where you have an employee who has moved onto insured pay, but can apply to any employee absent on health grounds. It is very easy for it to be assumed that e-mails or intranet notices are received by all, whilst forgetting those off on long term sick.  Doing so is a failure to make a reasonable adjustment, and puts you at risk of a meritorious claim.  Having a process for ensuring that absent employees are notified of such matters is essential, if you are going to cut-off e-mail or intranet access (or if absent employees cannot gain such access or receive such information). 

Comment

Our experience is that blocking e-mail and internet can be contentious and emotive, particularly if your employees use your e-mail for their own personal use.  It is sensible to identify whether there are other ways to limit the vulnerability of the organisation, such as limiting what is sent to an employee on long-term sick or limiting precisely what they have access to remotely. However the most important thing is to keep those on long-term sick informed about key messages in other ways – our increasing reliance on e-mail and intranet for circulating important messages does create the risk that those on long-term ill-health are not kept informed.

If this alert raises any issues for your organisation please speak to your usual contact in the Weightmans employment team. You can also contact Phil Allen, Partner in our Manchester Office phil.allen@weightmans.com.

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