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Case law: Employers should ensure policies allow them to access employee documents, emails, etc on work equipment

Employers should ensure their IT policies, employment contracts, and processes and procedures on the use of work computers, software and the internet, make it clear that employees can have no expectation of privacy for documents and other information they create, store, send or receive on the company’s systems or premises.

September 2017

This update was published in Legal Alert - September 2017

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

An employee left his employment after being asked to resign. He created a document on his work computer setting out his expectations under his employer’s Long Term Incentive Plan and bonus scheme, and emailed it as an attachment to his personal email account. He forwarded this to his lawyer who used it as the basis to advise him in his divorce proceedings.

The employer decided he was not a ‘good leaver’ under the Plan and a dispute arose. The employer argued that it should be able to see the email and document. The employee argued that it was privileged under legal advice privilege and litigation privilege, and refused to disclose it.

The High Court agreed with the employer, finding that the email and document was not privileged and was not therefore confidential, as the employee could have had no reasonable expectation of privacy. This was because:

  • He had created the document at work
  • He had used his work email to send it to himself
  • The document was saved on one of the company’s central servers and was neither password-protected nor stored apart from his other work-related documents
  • His personal assistant had access to his emails and emails were duplicated in the PA’s email account
  • His employer’s IT policy clearly stated:
    • Emails sent and received on work computers were the employer’s property
    • The IT department could access all company computers and email accounts without specific authorisation
  • His contract of employment made clear his emails could be monitored without his specific permission

The content of the document was also relevant. It included analysis of the company’s financial situation, based on information owned by the company. The employee knew all of this, and therefore had no reasonable expectation of privacy.

It did not help the employee that there were stark inconsistencies between his witness statements and what was in the document in question: those bringing confidentiality claims must come to the court with ‘clean hands’, ie their behaviour must have been proper. The Court said that even if the document had been confidential on legal grounds, it would have ordered disclosure on grounds that the employee did not have ‘clean hands’.

Operative date

  • Now

Recommendation

  • Employers should ensure that IT policies, contracts of employment, and processes and procedures relating to use of work computers, software and the Internet make it clear that employees can have no expectation of privacy for documents and other information they create, store, send or receive on the company’s systems or premises

Case ref: Simpkin v The Berkeley Group Holdings Plc [2017] EWHC 1472

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.