It’s not uncommon. You’re busy and trying to multi-task and accidentally hit ‘reply all’ or ‘forward’ when you shouldn’t. Before you know it, your ‘private’ comments are out there and no amount of attempting to recall the email is going to save you!

Reported in the press recently, one employer fell into a similar trap in inviting a prospective employee for an interview. Beneath the email were comments which stated the candidate could be ‘a biscuit short of a packet’, ‘a left-wing loon tree hugger’ and a ‘home-educated oddball’. This person was described as being worth interviewing ‘if only for a laugh’.
 
No doubt the individuals concerned never had any intention whatsoever that the candidate would see those comments. Internal emails are, after all, private – aren’t they…?
 
The short answer is no, not always.
 
There is a common misconception that email is informal, private and akin to a conversation over coffee. But there is a glaringly obvious difference; a comment in writing makes very good evidence.
 
As an employer, you are responsible for the actions of your employees. It’s important that they understand what is and is not acceptable, not least where email is concerned.

Employers owe the same duties to prospective job candidates in many respects as to employees, particularly in relation to discrimination. What may seem to be innocuous ‘banter’ between colleagues could easily (and probably will) be interpreted in an entirely different way.
 
Even if the email stays within the realms of its intended recipients, employers need to remember that once something is committed to writing, it could come to light in any number of ways and the more people copied in, the more dangerous it can be.

The disgruntled candidate who didn’t get a job, despite considering themselves to be perfectly suited to the role, has the right to request information relating to their data held by the prospective employer.

Whilst it’s not usually obligatory to release the actual email, it’s often easier and commonly happens. Even if it doesn’t get released, it’s probably relevant to any potential tribunal claim meaning the employer will be under a legal duty to disclose it.

Our top tips for employers, to avoid costly claims:

• train your employees in your policies and procedures, particularly in relation to equal opportunities;
• make it clear to your staff what they shouldn’t put in writing and why. If in doubt, if you wouldn’t publish it in the local paper, think twice about writing it in an email;
• ensure your employees are aware that their emails can (and will) be monitored.

If you need advice in relation to any aspect of employment law, our Employment team will be pleased to help.