Are you a senior executive? The Law says you can’t switch off from your email

By Allan Watton on

“Honest dear, I really am doing the painting, or shopping, or looking after the kids, helping with the housework, cleaning the car…”

…as you quickly hide your Blackberry, iPhone or other device which you have been sirruptiously checking your emails on.

Lord Justice Moore-BickAlternatively, you may just want to have some legitimate and well planned leave and time away with your family. On that basis, you can not bother checking your email. Or can you? Unfortunately, Lord Justice Moore-Bick (pictured left) says you have to check your email.

Often, senior executives are told by their partners and/or spouses – sometimes even children – to ‘switch off’. And by that I mean not having a holiday, a massage or a trip to the local beauty salon. No. I mean ‘turn that bl**dy phone off’. Why? Because you keep checking it when you are supposed to be having ‘home’ or ‘family’ time.

The case below actually refers to a new ruling in the Administrative Court on the e-mail service of a notice relating to extradition: see Salazar-Duarte v Government of the United States [2010] EWHC 3150 (Admin).

Although this case relates to an extradition appeal (which have very strict proceedings dates), there is an argument that this ruling can apply to any senior officer in an organisation with a senior level of responsibility.

In summary, what Lord Justice Moore-Bick said was that ‘if a message is in your inbox, you are deemed to have read it’. Ouch.

For the detail addicts amongst you, this is the transcript:

23. It cannot be doubted that e-mail has become a normal method of communication; indeed, it is often preferred to fax. Letters and other documents are routinely sent as attachments to e-mails and once one accepts that documents may be sent electronically by fax there are no grounds for distinguishing between fax and e-mail. The only distinction is that an e-mail (and any attachment) has to be opened in order to read its contents, whereas a fax may be read as it comes off the machine, but that is a distinction without a difference. If anything, it renders an e-mail more akin to transmission by post, where again the envelope has to be opened in order to read the contents. If the Secretary of State can discharge her duty to inform the person concerned by sending a letter to his solicitor, the only question is whether it is necessary for the solicitor to have actual knowledge of its contents in order for him to be informed that the order has been made.

24. … the person concerned is informed of the order when his solicitor receives a letter, whether by post, fax or e-mail, which informs him that it has been made. Delivery is sufficient, because once the letter has reached the solicitor’s office the time at which it is opened and read is within his control. Just as he cannot rely on a wilful failure to open and read it, so too he cannot rely on absence on other business or the lack of efficient procedures within his office for opening and distributing mail. Exactly the same considerations apply to communications by fax or e-mail. The solicitor cannot say that he was not informed of the order because of a failure of arrangements within the office to put the fax on his desk or forward the e-mail to him; nor can he rely on his absence from the office at the time when the letter, fax or e-mail is received. Business can only be conducted on the understanding that communications of this sort are read when they are received. I think it can reasonably be inferred, therefore, that when Parliament decided to impose a duty on the Secretary of State to “inform” the appellant it was entitled to, and did, assume that the appellant (or anyone else who could properly be informed on his behalf) would inform himself of the contents of a letter, e-mail or fax immediately upon its receipt. For practical purposes, therefore, it must have proceeded on the basis that delivery of the letter to the appellant (or in this case his solicitor) amounts to the communication of its contents on the day of receipt. In my view the word “inform” is to be construed so as to give effect to that assumption.

25. … To interpret section 100(1) [of the Extradition Act 2003] as requiring the Secretary of State to bring the existence of the order to the actual notice of the person concerned, or that of his solicitor, as opposed to simply requiring the delivery of a letter or electronic message containing the necessary information, would render the date of performance of that duty very uncertain and would risk seriously undermining the statutory provisions.

26. For all these reasons I consider that the appellant was informed of the order on 16th June when the letter reached his solicitor’s office as an attachment to an e-mail. A copy of the notice of appeal was not given to the CPS until 1st July and accordingly, whether the last day for giving notice was 29th June (as I think) or 30th June, the appeal was out of time. It follows that this court has no jurisdiction to entertain it and it must be dismissed.

An exaggeration?

Is the idea that this could apply to all senior officers too much of an exaggeration? I don’t think so. Does this mean that huge emphasis needs to be put on efficient team working and fantastic organisation? Do you actually have a home life – that you care about? (No comments please).

This judgment only applies to working days and not weekends. What is a working day? Any day apart from a bank holiday. “What about planned leave” goes the cry. Nope. That doesn’t count. If it’s a working day for everyone but you, then tough. The ‘office’ is going to have to take care of whatever was in that email for you.

Please show your appreciation to Laurence Eastham of Society for Computers and Law who drew this case to my attention.