Settlement Agreements and Employee Communications

Employee’s private communications have the ability to damage the reputation of an employer. There has been a steady stream of cases involving Facebook, Twitter and other social media platforms but what is the legal position of an employee whose private communications, whether text messages or emails get into the hands of their employer? What if it is discovered that an employee is involved with political, social or other groups who promote offensive material?

The alleged text messages sent between a football manager and his scout have been splashed all over the national papers. The content makes unpleasant reading and includes potentially racist, homophobic and sexist exchanges.

Iain Moody resigned before his employer, another football club dismissed him or sought to reach a compromise and sign a settlement agreement. The high profile nature of the revelation left his current employer Crystal Palace FC in an unenviable position even though the series of conversations all took place prior to his employment with Crystal Palace FC.

Although the employer had no part in breaching their employee’s privacy, having attained the message lawfully due to the severity of content the employer was compelled to act.

An employer has various options depending on the length of the employee’s length of service.

Where an employee has less than two years’ continuous service, they will not receive ordinary unfair dismissal protection. Therefore an employer may dismiss an employee for bringing the employer into disrepute and tarnishing their reputation without the risk of unfairly dismissing the employee.

Where the employee has the required period of continuous service an employee will need a fair reason and to follow a fair procedure to fairly dismissal an employee. If the employee’s previous conduct was so grave that he was unable to do his current job due to an erosion of trust and confidence or in the case of an employee having been guilty or racist, sexist and homophobic conduct an employer may rely on Some Other Substantial Reason (“SOSR”) to dismiss the employee fairly.

Employers must be careful as it is unlawful for private communications to be intercepted in the course of transmission. So an employer must exercise particular caution to the manner in which private emails, text messages are received so that an employee’s right to a private life under article 8 of the European convention of human rights is not breached. This may even include opening emails before the intended recipient has received them.

If you have any concerns about the way in which your employer has monitors your communication, please do not hesitate to get in touch with a member of the team.

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