It could be argued that non-work-related emails sent by employees from a workplace email would be classed as private and confidential. However, a recent Court of Appeal case (Brake v Guy (2022)), concluded that there was no reasonable expectation of privacy when the employee used the work email system to send personal emails. The details of this ruling raise important points for employers to consider when assessing employee information rights and policies.
The trial was to determine whether emails sent from an employee’s (Brake) work email account should have been protected by privacy laws. The trial judge found that the email account belonged to the employer (Guy) and therefore rejected the argument made that Brake owned the account. On appeal, Brake changed the focus of the argument to look at emails being private and confidential, even if sent from a workplace account.
The Court of Appeal concluded that there was no reasonable expectation of privacy for Brake when they used their workplace email, nor an obligation of privacy on the ex-employer. This decision was made because of the following reasons:
- The email account in question (general enquiries) had been found to be owned by the employer and the password to the account was ultimately under the control of the employer.
- Brake did not choose to show the non-work emails as evidence and therefore it could not be determined that they must be private by reference to generalised descriptions.
- No attempts to separate private emails from work emails was made by Brake despite having a personal work email which may have the expectation of privacy in contrast to the general enquiries account.
This decision does not mean that employers now have the green light to do what they like with personal communications sent by employees on work accounts. There are still elements to consider on a case-by-case basis. For example, whether any expectation of privacy have been indicated be that via internal communications, company policies, processes, and the system structuring. Additionally, it can depend on the reason for the employer’s investigation as if they are just looking without justification this can be viewed as a breach of privacy.
It can be argued that it is clear the Court of Appeal had the wider implications of their decision in mind throughout the Brave v Guy case. Employers would have faced huge difficulties had the trial gone in favour of Brake, particularly after employment ends as they would need to trawl through however many emails to uphold the employee rights. Therefore, this is a decision that is helpful to employers and important to keep in mind when dealing with employee information rights.