Be careful what you say in emails, it could be costly!

Tuesday 26th October 2021

It is a widespread misconception that private conversations on email or other messaging apps on work devices will remain private.

It is common practice for disgruntled or former employees to send data subject access requests (DSARs) to their employers to try and gain information to use as leverage in a dispute, often with the aim of achieving a sum of money in settlement. Employees do not need to provide reasons for making a DSAR.

Upon receiving a DSAR, employers are required to disclose all documentation and information that they hold in relation to that employee, including emails and messages which the individual was not a party to, but was the topic of discussion. There are only limited exceptions. An employer cannot withhold documents simply because they are damaging or embarrassing.

In addition to the risks posed by DSARs, if an employee were to bring an Employment Tribunal claim, the employer will be required to disclose all documents in their possession relevant to the claim. It is possible that documents legitimately excluded from a DSAR would be caught by this requirement.

Employers should be careful what they put in writing and think about whether it is necessary to do so. For example, an email or WhatsApp message on a work mobile to a colleague expressing an opinion about an employee would potentially be disclosable, irrespective of confidentiality. The question to ask yourself is: would I be happy for a Judge to read this out in a hearing?

Employers should ensure that all staff are trained on this issue, as their email correspondence  could end up in front of the individual or an Employment Tribunal, which could be damaging no matter how junior or senior the writer. If an issue must be discussed, picking up the telephone may be the best way forward.

For full advice on your obligations following a DSAR and the best practice for avoiding damaging disclosures, please get in touch.

To view the full October Employment Law Update, click here: