When emails come back to haunt you

Often, people can find themselves in all sorts of legal trouble for not thinking twice about what they write in emails.

There’s a widespread assumption that if you send an email to someone and mark it ‘private and confidential’, nobody else will read it. So in the heat of the moment, you send a scathing email to a fellow worker, complaining about what one of your subordinates has done or said.

Unfortunately, that email may need to be disclosed at a later date.

Data subject access requests

Employees have a right to make a ‘data subject access request’. This means that they can request access to the personal data that you are holding about them, including email exchanges that reference them, for example between their manager and the HR department.

Dealing with these requests can be very time-consuming, costly and inconvenient, but you are required to deal with the request within 40 calendar days of receiving it. Employers can often find it difficult to comply with the request in this timeframe, so it’s essential to get started with locating the information as early as possible.

If the employee wants access to all emails relating to themselves over the last 12 years of employment, this may be a very cumbersome process. You should speak to the employee to see what they really want to know to see if you can confine the parameters of the search. If they do not budge, you will need to supply them with all the information requested. You can charge the employee a fee of up to £10 to deal with the request.

If you do not comply with the request, the employee may submit a complaint to the Information Commissioner’s Office (ICO). The ICO will look into the matter to assess the nature of the request and if they agree with the employee, they can issue an enforcement notice requiring you to comply.

Remember that the EU General Data Protection Regulations will come into force on 25th May 2018 and they make some changes to subject access requests. Firstly, they scrap the option of employers charging a fee. The only exception to the general rule is if the request is ‘manifestly unfounded or excessive’. The employer must respond to a request within one month. This may be extended in certain circumstances, for example, if the employer has to deal with a particularly complex issue.

Disclosure of documents in legal proceedings

If an employee launches legal proceedings against you, you would need to disclose all the relevant documents which are in your possession or control. Employers, HR professionals and managers often do not realise that that emails sent between themselves will need to be disclosed, even if they are detrimental to your case.

For example, a senior manager has left and you are holding an internal recruitment process to find someone to replace them. An employee applies for the role, but she is rejected despite having more experience than the others and all the right skills for the job. She brings a claim against you because she believes that she was discriminated against because she has just got married and has expressed a desire to have children. She requests all the relevant documents in relation to the selection process, which includes emails between managers and the HR team. One email says they didn’t want to promote her into the role because she will soon go off and take maternity leave. As harmful as this is to the employer’s case, it would need to be disclosed.

The only documents that would not need to be disclosed would be those that are privileged. This includes emails from legal advisers giving legal advice to the employer or emails prepared in reasonable contemplation of litigation.

Some top tips for employers

The main tip is to take great care with what you say in emails because it can come back to haunt you in the future.

  • Never send an email out in the heat of the moment. Always allow time to cool down and think about what you are going to write and what the possible repercussions could be.
  • Never write anything down that you would be embarrassed to be questioned about at a tribunal hearing
  • If you are unhappy with an employee, speak to them face to face or by phone and use your formal procedures to deal with the issues.

Director of Legal Services

James Tamm

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