Does an employer have the right to access off-site emails held by a former worker?

An unconventional recent case is likely to interest those in receipt of employment law advice from Employee Management Ltd (http://www.employeemanagement.co.uk) who have wondered about an employer's rights with regard to access to emails that may not be stored on company systems. In the case Fairstar Heavy Transport v Adkins, the employer requested a court order requiring access to emails relating to the firm's business to be granted by an ex-CEO.

There was an unusual set of facts to this case. Although the chief executive, Adkins, lived in England, the company was incorporated in the Netherlands. The set-up of company communications involved all emails addressed to the chief executive being forwarded to Adkins, prior to the deletion of the emails from the company system. This meant that storage of the emails was on a personal computer at Adkins' home.

At the time of the appointment of Adkins as chief executive, he was not employed by the company, instead having been engaged as a consultant through his own company, by Fairstar. The employer in the case requested that he provide the emails after his engagement was terminated, only for him to refuse.

The High Court therefore had to rule on the preliminary issue of whether Fairstar could make a proprietary claim to the content of the emails in Adkins' possession, and if this was the case, whether it could be enforced. The High Court decided against the company having such a claim, on the grounds that it was not possible to regard the information contained in the emails as a form of property.

It was decided by the Court of Appeal, however, that the wrong question had been asked of the court by the parties. Fairstar did have the legal right to inspect and copy the emails, given that the chief executive was a former agent of the company. That the agency had been terminated did not mean that termination had also occurred to the duty binding on Adkins as a consequence of the agency relationship. This gave the company entitlement to check the emails.

The lesson of the case for observing HR support clients is that it is important for employment contracts, or contracts between companies and consultants, to incorporate express provisions addressing the matter of who owns emails that may be generated on the employer's behalf, but stored off-site.

Such provisions could take the form of a contractual obligation on the employee's part to ensure the backup of emails on company servers, or to provide copies of the emails on the termination of the contract. That the court found in favour of the employer, despite the firm not arguing that the emails contained confidential company-owned information or that the ex-CEO had breached his fiduciary duties, should comfort many businesses.

Nonetheless, there remains a great value to companies consulting a firm like Employee Management Ltd (http://www.employeemanagement.co.uk) in their alteration of employment documentation to deal with the issue, to ward off the possibility of similar disputes in the future.

Editor’s Note: Employee Management Ltd (http://www.employeemanagement.co.uk) are represented by the search engine advertising and digital marketing specialists Jumping Spider Media. Email: info@jumpingspidermedia.co.uk or call: +44 (0)20 3070 1959 / +34 952 783 637.