Is anything private at work?
The High Court decision of Simpkin v The Berkeley Group Holdings plc highlights both the benefits to an employer of having a clear and comprehensive IT policy and the risks for employees using work IT systems for personal correspondence.
Many employers permit their employees to use the company’s IT system for occasional personal use. However, problems can arise when an employer claims that it owns the information or documents created on its IT system; whilst the employee argues it has a reasonable expectation of privacy and confidentiality.
Mr Simpkin was in an employment dispute with his former employer, Berkeley, and sought for the High Court to determine that an email he sent from his work email address to his personal email account (and then on to his lawyer for advice in relation to divorce proceedings) was private, confidential and privileged – meaning that the email and its contents should not be included in Berkeley’s witness statements and should not be relied upon further in proceedings.
However, the content of the email and the attachment were of particular interest to Berkeley since they set out an account of Mr Simpkin’s expectations under the company’s Long Term Incentive Plans that was somewhat different to the position set out in his witness statement relating to the dispute.
It is a pre-condition to a claim of privilege that the documents in question are confidential. In short, Berkeley argued that the email (and attachment) simply was not confidential and it had a right to access it.
The High Court agreed with Berkeley and the following factors lead to its decision:
- Mr Simpkin had signed a copy of Berkeley’s IT policy which made it clear that emails sent and received on its IT systems were the property of Berkeley;
- Mr Simpkin’s employment contract made it clear that his emails were subject to monitoring by Berkeley without his consent; and
- The content of the emails were created on Berkeley’s IT system, at its office and were then sent out on its email system.
This case is a good example of the importance and benefit of having a clear IT policy, and employment contract, that is acknowledged by the employee. Setting out expectations from the outset of employment should help reduce any misuse of your IT systems. Further, if needed, being able to monitor and access an employee’s use of your IT systems can be a useful tool in monitoring performance and disciplinary issues.