The perils of using your work computer for personal matters was recently highlighted in the High Court case of Simpkin v The Berkeley Group Holdings PLC.
In that case the Mr Simpkin was the Finance Director of The Berkeley Group. Berkeley terminated his employment, removed him as a director and decided that he would not be treated as a “good leaver”. As a result Mr Simpkin would not receive the substantial financial benefits of a long term incentive plan and bonus scheme of which he was a part. He therefore issued proceedings against Berkeley.
During Mr Simpkin’s employment with Berkeley he had sent an email from his work email account to his personal email account with an attachment containing an analysis of his expectations under Berkeley’s long-term incentive plan. He had then forwarded the email from his personal account to his solicitor who was dealing with his divorce.
Berkeley wanted to use the email and attachment in the context of its employment dispute with Mr Simpkin but he argued that they should be prevented from doing so as the documents were protected by legal privilege – broadly speaking communications between a client and their solicitor are protected from use in proceedings by privilege. However, Berkeley contended that Mr Simpkin was not entitled to claim privilege in relation to those documents because when a privileged document came into the hands of an opposing party in litigation there was nothing to prevent that party from using that document. They also argued that the document was not confidential as far as it related to Berkeley – it was accepted by both parties that confidentiality was a pre-condition to privilege.
The court decided that the documents were not confidential because:
- Mr Simpkin had signed Berkeley’s IT policy which provided that emails sent and received on Berkeley’s IT system were the property of Berkeley.
- Berkeley’s IT department had full access to all emails sent and received by Mr Simpkin.
- The document was created by Mr Simpkin during the course of his employment with Berkeley and by using its IT system.
It was therefore impossible for Mr Simpkin to have any reasonable expectation of privacy as regard the preparation of those documents as he should have been aware that they would be stored on Berkeley’s servers. The judge found that the documents in question were never confidential in relation to Berkeley or, if they were, they lost their confidentiality when they were processed on Berkeley’s IT system.
This case highlights one of a number of risks for employees who use work IT systems for private communications. It is also a reminder to employers to ensure that their IT policies are as watertight as possible to avoid complications such as this arising both during the employment relationship and after it has ended.