Should private emails be private in the corporate world?

In the world of social media and the internet, Matt Gingell examines the complex issue of whether a business can scrutinise employees’ private activities

Do “female irrationality” and “skinny big-titted broads” ring any bells? Let me jog your memory, the Scudamore sexist email scandal - a classic example of the employer being caught in the headlights.

Richard Scudamore, the chief executive of the Premier League, sent/forwarded emails to a friend containing sexist comments as part of an email exchange.  A temporary personal assistant searched his private account and leaked the emails to the Sunday Mirror. After carrying out an investigation with a law firm, the Premier League decided to take no further action.

Their reasoning: the emails were private communications between long-standing friends; they had been obtained without authorisation from a private account; and there was no evidence of wider discriminatory behaviour.  Privacy prevailed but for the Premier League, with the sexist banter and no red (or even yellow) card shown, a barrage of criticism ensued. So, what is the law on privacy?

The European Convention on Human Rights, which is incorporated into UK law, states that everyone has the right to respect for their private and family life, their home and their correspondence. Although only public bodies must expressly comply with this, it is relevant to all employers (including the private sector) as Courts and tribunals must interpret, as far as possible, all legislation consistently with the right. There are only limited situations where the right may not apply, one, for example, being if there are national security concerns.

Under employment law, employees, generally with two years’ service, have the right not to be unfairly dismissed.  Employees may be dismissed fairly though for misconduct inside or outside work.

A key question would be whether the misconduct affects or could affect the employee’s work in some way or whether there is or could be reputational damage to the employer. Incidents outside work might include those involving violence, sexual conduct, other discriminatory behaviour or dishonesty. In one particular case an employee of a charity working within the prison community was dismissed fairly for sending an offensive email outside working hours from his home computer to a former colleague’s home computer.

The recipient forwarded the email with racist and sexist content to the recipient’s workplace, which happened to be a prison, and the employer got wind of it. The Employment Tribunal decided that there was potential damage to the employer’s reputation; procedures had been followed correctly; and the decision to dismiss was fair and fell within the reasonable range of responses open to the employer. On privacy, the tribunal found that the employee could not have expected the email to have been private given that it was headed “IT IS YOUR DUTY TO PASS THIS ON!” 

What about applying this reasoning to Mr Scudamore’s “foul play”? Well, the emails had sexist content, were sent from a private account and there was serious risk to reputation. The main difference was that the emails were not headed in the same way. Is this critical? It is true of course that Mr Scudamore may have had far less reason to think that his email chain could be passed on, and the issue of privacy (as well as the issue of how the emails were obtained) would be relevant to fairness. Arguably, though, the Premier League might still have had grounds to dismiss.

The Scudamore emails were leaked, rather than obtained through employer monitoring, but does an employer have the legal right to go snooping on employees? Data protection law requires employers to provide detailed information to their employees about the employer’s monitoring activities. Employers should also have legitimate grounds for the monitoring and avoid unjustified intrusions into the employee’s private life.

The monitoring of email content from private accounts, for example, would be seen as one of the most intrusive forms of monitoring - and could be hard to justify. The Employment Practices Code issued by the Information Commissioner contains important guidance on monitoring and good practice recommendations.

When it comes to monitoring, employers should also consider the interception of communications framework. Before an interception, normally consent from the sender and recipient is required. Employers may, however, intercept communications which are “relevant to the business” without obtaining consent. The difficulty though is how will an employer know for certain if an email is relevant to the business without opening it? Answer: not easily, and then it could be too late!

The whole thing is a managerial headache – and as the line between private and business life continues to blur employers will have to grapple with competing interests. My best advice is: have a monitoring policy; consider your options carefully when faced with difficult privacy issues; and unless you know what you’re doing don’t spy on your team!

Matt Gingell is a Partner at law firm Gannons which specialises in employment and commercial law: www.gannons.co.uk

Start your day with The Independent, sign up for daily news emails
News
ebookA unique anthology of reporting and analysis of a crucial period of history
News
peopleMathematician John Nash inspired the film Beautiful Mind
Arts and Entertainment
Reimagined: Gwyneth Paltrow and Toni Collette in the film adaptation of Jane Austen's Emma
books
Arts and Entertainment
Jesuthasan Antonythasan as Dheepan
Cannes 2015Dheepan, film review
News
Richard Blair is concerned the trenches are falling into disrepair
newsGeorge Orwell's son wants to save war site that inspired book
Arts and Entertainment
The pair in their heyday in 1967
music
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs Money & Business

Guru Careers: Software Developer / C# Developer

£40-50K: Guru Careers: We are seeking an experienced Software / C# Developer w...

Neil Pavier: Management Accountant

£45,000 - £55,000: Neil Pavier: Are you looking for your next opportunity for ...

Sheridan Maine: Commercial Accountant

£45,000 - £55,000: Sheridan Maine: Are you a newly qualified ACA/ACCA/ACMA qua...

Laura Norton: Project Accountant

£50,000 - £60,000: Laura Norton: Are you looking for an opportunity within a w...

Day In a Page

Abuse - and the hell that came afterwards

Abuse - and the hell that follows

James Rhodes on the extraordinary legal battle to publish his memoir
Why we need a 'tranquility map' of England, according to campaigners

It's oh so quiet!

The case for a 'tranquility map' of England
'Timeless fashion': It may be a paradox, but the industry loves it

'Timeless fashion'

It may be a paradox, but the industry loves it
If the West needs a bridge to the 'moderates' inside Isis, maybe we could have done with Osama bin Laden staying alive after all

Could have done with Osama bin Laden staying alive?

Robert Fisk on the Fountainheads of World Evil in 2011 - and 2015
New exhibition celebrates the evolution of swimwear

Evolution of swimwear

From bathing dresses in the twenties to modern bikinis
Sun, sex and an anthropological study: One British academic's summer of hell in Magaluf

Sun, sex and an anthropological study

One academic’s summer of hell in Magaluf
From Shakespeare to Rising Damp... to Vicious

Frances de la Tour's 50-year triumph

'Rising Damp' brought De la Tour such recognition that she could be forgiven if she'd never been able to move on. But at 70, she continues to flourish - and to beguile
'That Whitsun, I was late getting away...'

Ian McMillan on the Whitsun Weddings

This weekend is Whitsun, and while the festival may no longer resonate, Larkin's best-loved poem, lives on - along with the train journey at the heart of it
Kathryn Williams explores the works and influences of Sylvia Plath in a new light

Songs from the bell jar

Kathryn Williams explores the works and influences of Sylvia Plath
How one man's day in high heels showed him that Cannes must change its 'no flats' policy

One man's day in high heels

...showed him that Cannes must change its 'flats' policy
Is a quiet crusade to reform executive pay bearing fruit?

Is a quiet crusade to reform executive pay bearing fruit?

Dominic Rossi of Fidelity says his pressure on business to control rewards is working. But why aren’t other fund managers helping?
The King David Hotel gives precious work to Palestinians - unless peace talks are on

King David Hotel: Palestinians not included

The King David is special to Jerusalem. Nick Kochan checked in and discovered it has some special arrangements, too
More people moving from Australia to New Zealand than in the other direction for first time in 24 years

End of the Aussie brain drain

More people moving from Australia to New Zealand than in the other direction for first time in 24 years
Meditation is touted as a cure for mental instability but can it actually be bad for you?

Can meditation be bad for you?

Researching a mass murder, Dr Miguel Farias discovered that, far from bringing inner peace, meditation can leave devotees in pieces
Eurovision 2015: Australians will be cheering on their first-ever entrant this Saturday

Australia's first-ever Eurovision entrant

Australia, a nation of kitsch-worshippers, has always loved the Eurovision Song Contest. Maggie Alderson says it'll fit in fine