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Is there a right to privacy?

Meredith Hurst Friday, March 4, 2011

The expectation of privacy in the workplace is often misunderstood. Generally speaking employees should have no such expectation when using work computers. In the case ofGosden v Lifeline Project Limitedpublished this week however, the Employment Appeal Tribunal went a step further in establishing that dismissal of an employee for sending an offensive e-mail from a home computer to a colleague's home computer, was fair.  No privacy attached to the e-mail since it was a chain e-mail asking recipients to pass it on.  This is apposite given the prevalence of social media such as Facebook in today's climate.  Too often, employees are prepared to criticize their employers, thinking that it is fair game because it is done after hours, within the confines of their own home or on their own equipment.  What they don't always appreciate is the fact that this could amount to slander and seriously damage the employer's reputation or bring its name into disrepute.

The line between work and play is often blurred and the employment tribunal will consider whether activity was carried out in the course of employment.  It also will consider whether conduct outside work has a bearing upon a person's ability to do their job.

Unfortunately for Gosden, he found himself on the wrong end of a finding of gross misconduct justifying dismissal.  He worked for a charity which assigns its employees to HM Prison Service (HMPS) to work with drug users in prison.  He sent an email of a sexist and racist nature from his home computer to the home computer of a colleague who subsequently passed it on to another colleague working for the prison service.  As such, the email entered the HMPS system.

The reason for dismissal was gross misconduct, namely damaging the employer's reputation. It was within the band of reasonable responses for the charity to regard the forwarding of the email to one of its largest clients HMPS, as something that might damage its reputation.

Gosden asserted that he had the right to a private life under section 8 of the Human Rights Act 1998 but this argument fell away.  The fact that the email was headed"It is your duty to pass this on!"meant that Gosden was aware that it was likely to be passed on and that he had no control over what the immediate recipient of his email might do with it.

The employer in this case was careful to categorise the misconduct carefully and correctly, relying upon the example in its disciplinary policy of gross misconduct as including bringing the company into disrepute, as well as being in breach of its equal opportunities policy.

The moral of the story for employees is to think twice before sending an email or publishing comments on a social networking site. If you do want to bare all on Facebook then so be it but consider the consequences!