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Using the Work Computer for Personal Correspondence? A Case Examines the Lack of Confidentiality Between Employer and Employee and the Importance of "Clean Hands"

As many are aware, one who seeks equitable assistance from the law must be one who comes with ‘clean hands’. The recent case of Simpkin v The Berkeley Group Holdings plc has helped shed light on this issue, as well as reaffirmed the well understood principle that things done during work time on a work computer will be considered work property.

Background Facts

The claimant had sent an email from his work email account to his personal email account with an attachment containing an analysis of the claimant’s expectations under the defendant’s long-term incentive plan. The defendant at the time was the claimant’s employer. The claimant had forwarded the email from his personal account to his solicitor to obtain advice in relation to divorce proceedings.

The claimant then made an application to restrain the use of this supposedly privileged document in the context of an employment dispute. The Court was specifically asked to consider whether the document was confidential as between the employer and the employee. The defendant argued that the application failed because the email was not confidential as against the defendant (it was common ground that confidentiality was a pre-condition to privilege).

Decision

The judge considered the Court's power to restrain the use of privileged documents under its equitable jurisdiction and concluded that the email was not confidential because:

  1. The claimant had signed the defendant's IT policy which provided that emails sent and received on the defendant's IT system were the defendant’s property;

 

  1. The defendant's IT department had full access to all sent and received emails; and

 

  1. The attachment was created during the course of the claimant’s employment using the defendant’s IT system.

The Judge added though, that even if he deemed the email confidential he would have exercised his discretion to refuse the claimant’s application. This was because of the ‘stark conflict’ between the claimant's witness evidence on his expectation under the long term incentive plan compared to the evidence contained within the email attachment. In other words, the claimant lacked ‘clean hands’.

Comment

This decision highlights the risks for an employee using the work IT systems for private communications. It also provides a reminder that the court can and will refuse to exercise its discretion to grant equitable relief if a claimant lacks ‘clean hands’.

 

This bulletin is for general guidance purposes only and should not be used for any other purpose.

Brabners is a Limited Liability Partnership