Case in UK Shows Importance of Having the Right Employee Monitoring Policy

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The EAT which is the UK Employment Appeal Tribunal dismissed the claim of the employee to his right of privacy being infringed upon and confirmed that an employer is to be entitled to monitoring the workplace emails and the internet use of the employee as long as there is a clear policy in place, in the case of Atkinson v Community Gateway Association.

Mr. Atkinson, the employee claimed constructive unfair dismissal. For the course of investigating his conduct, Mr. Atkinson’s employer accessed his emails and discovered that he had been sending overtly sexual messages to a friend of his and had even sought to get her a position with the employer. Prior to disciplinary action being taken against him, Mr. Atkinson resigned and complained that the proceedings were taking place in a manner which amounted to the repudiatory breach.

One of the points on which an appeal was being made was whether or not the Employment Tribunal had in the past made a mistake in the law in finding that the employer accessing the emails of his employee was not a breach of the employees right to respect for private and family life which falls under Article 8 of the ECHR which is the European Convention on Human Rights.

The EAT found that under Article 8 of the ECHR, Mr. Atkinson’s right to privacy had not been infringed upon by his employer simply because the latter had investigated his email account while the disciplinary investigation was ongoing and this was in accordance with the Internet and Email Acceptable Use Policy which had been applied by the employer in the workplace. The employee too had himself written down this policy and had been responsible for its enforcement. Thus, the employee had not solid ground or expectation of privacy based on such facts.

The EAT also went through the policy in detail and amongst other things, it did state that the users of the computer systems of the employer were bound by it and that emails would be monitored, even for the purpose of investigations and that they shouldn’t be considered as being private.

The decision by EAT on the Employment Tribunal is seen as binding and is likely to be persuasive in similar cases were they to appear in the future before the EAT as well as the High Court. Such an example clearly states how important it is for an employer to have a well drafted and a clear email policy being used at the organization which clearly explains and set out what is and isn’t considered to be appropriate with respect to emails and computer use in the workplace. Without having any such policy, the outcome, in this case, could have been very different.

Thus, employers should keep cases such as these and others in mind when they are devising policies for their workplace. While email and internet use may not seem to be such a big deal, it is always better to be safe from the start rather than having to face trouble later on.

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