Accessing Employee Emails: A Breach of Privacy?

This article was originally published in the September/October 2016 issue of the Surrey Board of Trade newspaper.

According to a recent court case, employers may be committing a breach of privacy by accessing their employees’ personal emails on workplace computers. As such, it is important for employers to have a computer policy in place to protect themselves.

TeBaerts v Penta Builders Group

In TeBaerts v Penta Builders Group Inc, the plaintiff was dismissed from her employment as a project consultant and account manager after 11 years. The plaintiff brought an action against her employer, claiming that the employer had committed a breach of privacy by accessing a personal email exchange between the plaintiff and her mother through her workplace computer.

In determining whether the employer has breached the plaintiff’s privacy, the Court considered whether the plaintiff had a reasonable expectation of privacy with respect to the use of her workplace computer. Specifically, the Court considered the following factors in deciding whether the employer had breached the plaintiff’s privacy:

1. the employer owned the plaintiff’s workplace computer;
2. the employer did not have a workplace computer policy;
3. the employees used their workplace computers for personal reasons;
4. the employees often left their computers unlocked;
5. the employees often used each other’s computers;
6. the employees knew each other’s passwords; and
7. the plaintiff’s email exchange was accessed after an altercation with her employer.

The above factors established that the employer had a relaxed approach to the use of workplace computers, and that it was not reasonable for the plaintiff to expect absolute privacy with respect to the use of her workplace computer. As a result, the Court ruled in favour of the employer, finding that the employer had not committed a breach of privacy.

Key takeaway for employers

It is crucial for employers to have workplace computer policies in place. These policies will provide certainty to employers and employees regarding their rights and responsibilities. Further, workplace computer policies may prevent employers from becoming involved in legal disputes like the TeBaerts case. An experienced employment law lawyer can draft a workplace computer policy for your business. If you have questions about workplace computer policies, please call McQuarrie Hunter LLP at 604.581.7001 or visit our website by clicking here.