ACEVO Guest Blog – The Trouble with Emails

Elizabeth Judson, Ellis Whittam
Elizabeth Judson, Ellis Whittam

Most Board members, Chief Executive Officers (‘CEOs’), managers and employees now routinely use email to correspond with one another; it is efficient, cost effective and time saving. However, it can cause problems in employment – this article will look at some of the main areas where the sending of emails can backfire on an organisation.

Most people assume that if they send an email marked private and confidential, it will remain private and confidential. This should be the case, but is not always so. If the relationship between an employee and manager breaks down, you could find that the privately sent email criticising the employee may have to be disclosed to that employee.

All employees have the right to make a data subject access request under the Data Protection Act and, in fact, it is often the first port of call for a disgruntled employee to make such a request knowing it is going to be time consuming and annoying for the employer, as well as potentially giving them ammunition which they can use. A data subject access request means that if they request to see all data in which they are the subject, including emails, these must be disclosed to them. The employee can be asked to pay a fee of £10 and the employer has to comply with their request within 40 calendar days. If the employee’s request is too wide, for example, if they were to ask for all emails relating to them over the last 10 years of employment, it is possible to ask them to narrow down their request to be more specific.

Only emails from legal advisers giving legal advice to the employer or emails prepared in contemplation of litigation are legally privileged so do not have to be disclosed.

If the employee decides to sue the employer, it is likely they will ask for disclosure of all relevant documents. It is a legal obligation to disclose these. The employer has to include any emails which, for example, contain private discussions between one manager and another about the employee, even if they are harmful to the employer’s case. This is because such emails are not legally privileged. Only emails from legal advisers giving legal advice to the employer or emails prepared in contemplation of litigation are legally privileged so do not have to be disclosed. If an organisation is investigated by the Charity Commission then they can be required to disclose all documentation unless it is legally privileged. It is therefore important to ensure that legally privileged documentation is not widely disclosed internally and that it is marked ‘legally privileged’ where it is necessary to distribute it further than the initial recipient.

By way of example, an employer advertised a vacancy for which a number of candidates applied. One of the candidates indicated on her application form, that she had a disabled child. She was shortlisted for interview but was unsuccessful at interview. She brought a claim alleging associative disability discrimination, on the basis that the only reason she believed she was unsuccessful was because she had disclosed she had a disabled child. As part of her claim, she requested disclosure of all relevant documentation relating to the recruitment process. Unfortunately, one of the emails that was disclosed to her contained an exchange between two of the interviewing panel, where one had emailed another saying they didn’t want to appoint the candidate because she would undoubtedly have lots of time off because she had a disabled child.

Sometimes the disclosure is accidental; it is all too easy for a manager to press send before double checking that the recipient is the intended recipient. In another example, a CEO sent an email about a direct report intended for his senior manager, but sent it to the direct report instead. The email stated that the employee was “lazy” and was even titled “John ‘Lazy S**’ Smith”! The employer had been planning on sacking the employee. Realising this, the employee quickly raised a grievance, and the employer ended up having to make a payment to the employee to exit him from the business.

The top tips for employers are therefore:

  • Never put something in an email which you wouldn’t want someone to read out loud;
  • Remember if circulating legal advice, mark it “legally privileged advice” and send privately;
  • Let employees know if you are unhappy with them, rather than doing it behind their back;
  • Always check the intended recipient’s address details before pressing ‘send’.

For a free initial advice call – members please contact 0845 226 8393, ask for the Partnerships Legal Team and quote your ACEVO membership number.

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