London's Technology and Construction Court has recently found that a company did not own the emails of its former Chief Executive Office, even though they were work related.
The case turned on its own facts, one of which involved the senior executive sending and receiving company emails using private or non corporate accounts and servers.
The physical storage of the emails was what caused the problem. Access to emails is often an important management tool, which facilitates good and proper administration, in relation to the affairs of a business, but, also, is important in corporate negotiations and, potentially, disciplinary matters.
In those circumstances, it is important to ensure that emails of a work nature are sent and received using company facilities and not by utilising private or non corporate accounts and servers. So in light of that ruling then what are you advising businesses that they do now to ensure the ownership of their emails? Just make sure that they have contractual rights. For example, if it is an employer and employee relationship then ensure in the employment contract that there is a contractual obligation in there regarding the use and retention of emails in there, particularly in relation to emails that should be handed over and also from an operational point of view that emails of archived on a daily basis.
If you do have personal email accounts make sure that emails are not sent from those accounts and that they are sent from the company accounts where other people have access to it if needed.
What were the worries here of the company regarding these emails and in particular what was to stop him handing them over but keeping a copy for himself? Confidentiality in itself if you have confidentiality provisions in the contract you would then have potential claims if those were breached after termination of the employment.
I think in this case they were actually looking at the specifics of the emails. They had got no record of the dealings that had gone on and because the employee was not obliged to hand them over they then potentially would have had to have gone back to the other party to ask them for copies of these emails, which if a dispute has arisen is unlikely to have happened so, it does make it more difficult really to see what has actually gone on between the parties. In the UK if you had that then you ended up with a Court case over the dispute of a contract for example there are provisions in the UK law where you can actually ask for those emails from the other party but it is something you should really have at the start so, it is better to have these contractual obligations in place.
So what are the practical implications for employees, should this change the way employees use work emails? Potentially yes, more so not using personal email accounts and there may be additional obligations that they have to copy for example, if they do use a personal email account they have to copy in somebody within the company.
They may have central IT department in that company for example. Why all the interest in what employees are writing? Part of it is a desire to avoid legal liability: Email creates an electronic document, which employers may have to hand over if they're sued. Emails sent or received through a company email account are generally not considered private. Employers are free to monitor these communications, as long as there's a valid business purpose for doing so. Many companies reinforce this right by giving employees written notice for example, in an employee handbook that their work email isn't private and that the company is monitoring these messages.
However, even if your employer doesn't have this type of written email policy, it still probably has the legal right to read employee email messages transmitted through company accounts. On the other hand, if your company takes affirmative steps to protect the privacy of employee emails, it might have restricted its ability to monitor these communications. For example, you might have a stronger expectation of privacy if your employer has assured you that company emails are private, if your employer's system allows messages to be designated "confidential," or if you are allowed to create a private password known only to you.
No matter what, employers can't monitor employee emails for illegal reasons. For example, it would be illegal for your employer to monitor emails to target or discourage protected activity—such as employee efforts to unionize.
An employer's ability to monitor emails sent or received on an employee's personal, web-based account for example, a personal Gmail account is more complicated. In general, this type of monitoring is more likely to be allowed if the employee is using company equipment and has consented in writing to the employer's monitoring of all computer use.
For example, many companies will have employees sign a written acknowledgement of a company policy that company-issued equipment is for business use only and that all activities will be monitored by the company. However, as an exception to "business use only" policies, employers must allow employees to use work email for union-related activities on their own time.
Employee privacy in electronic communications is a complicated and still developing area of law. States might also handle the matter differently, depending on the circumstances of the monitoring.
If you believe your employer violated your privacy, you should consult with a local employment attorney about whether you have a claim. Legality aside, the truth is that many employers now routinely monitor email their employees send and receive. For example:. Workers who logically assume their messages are gone for good when they delete them—especially if they were never sent in the first place—are very often wrong.
So how can you avoid problems with workplace email?
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