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Employee expects rights of privacy on personal emails

Can an employee expect rights of privacy on personal emails contained in a business email account of the employer? The above was addressed by the Court of Appeal in the case of Brake v Guy 2022 where a partnership business providing luxury breaks and events on the Axnoller estate closed resulting in bankruptcy for the partners with the Axnoller estate being sold and ending up with Guy (G) who proceeded to employ Mrs Brake (B) a former partner of the partnership business to run the business until their relationship broke down with (B)’s employment thereafter being terminated.

TERMINATION OF EMPLOYMENT

Following termination of employment, the parties entered to litigation actions on various legal issues including an employment claim over the misuse of private information and breach of confidence by the Employer relating to a business email account that was used to receive customer / potential customer enquiries about the services provided on the Axnoller estate, but which (B) has also used for private purposes. The Employer had accessed the email account and provided copies of (B)’s emails to third parties including trustee in backruptcy under provisions within s.366 of the Insolvency Act 1986. As the business account in question had a general enquiries email address rather than one in the (B)s name which would have had a greater expectation of privacy, the Court of Appeal held on the facts of the case that the employee should not have any expectation of privacy or confidentiality in respect of personal emails sent from a business email account where (B) had shared this email account with two other employees, neither of whom used it for personal correspondence. LJ Baker stated at paragraph 57 of his judgement that “The fact that Mrs Brake did not have exclusive use of the account but shared it with others is plainly relevant to the question whether there was a reasonable expectation of privacy” and that “It is clear from emails adduced in evidence and shown to this Court during the appeal hearing that other employees replied to business emails sent to Mrs Brake via the enquiries account.” Other case law highlights that the fact that certain types of personal information would as a general rule be treated as private but that does not give rise to any legal presumption – Bloomberg LP v ZXC (2022) UKSC thus whether there is a reasonable expectation of privacy will be a broad one taking into account of all the circumstances of the case as explained in the case of Murray v Express Newspapers PLC (2008) and thus the contents of any emails was only one factor to be considered in addressing that issue.

FRAUD

Despite the above, where an employee’s conduct is perceived as unlawful for example using a business email to perpetrate fraud on the Employer or the Employer’s business associates, that conduct would be relevant to both (a) to whether there was a reasonable expectation of privacy and/or duty of confidence and, if there was, (b) to whether there was a breach of privacy and/or confidence by disclosure. Privacy disputes can be very complex matters and always prudent to take professional advice on the matter. Please note that this article is for general information purposes only and should not be relied upon as being authoritative on the matter and is current to 22 April however further guidance on the matter can be provided by contacting the HR/legal advice line on 01455 852028. Jatinda Tara, Advice Line Team Leader

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