Can employers gain access to employees’ personal computers when they are suspected of having misused confidential information?
In Warm Zones v Thurley and another 2014 the employees’ employment contracts contained express confidentiality provisions prohibiting them from using or disclosing confidential information about the business and affairs of the Company both during and after employment. Both employees left their employment and went to work for a competitor. During their employment they both had access to the Company’s customer database.
One of the employees, Ms Thurley, commenced employment tribunal proceedings against the Company, during the course of which the Company discovered emails that the employees had sent to their new employer including details of the Company’s customer database and related information. The Company applied for an interim injunction preventing further disclosure of the information and an order for the inspection and imaging of the employees’ personal computers.
The employees argued that the documents seen by the Company were simply evidence of “sales type activity” where they were “talking up the data they had” but the High Court judge seemed to be unconvinced by this explanation and granted the injunction and made the order. The judge was satisfied that if the former employees were telling the truth and there was no misuse of confidential information, the inspection would reveal nothing and the litigation could be brought to an end swiftly.
Orders for inspection and imaging of a party’s computers are not frequently granted but are nevertheless a useful weapon in an employer’s arsenal against unscrupulous employees, and the threat of such an order being obtained may be enough to sway some employees from misusing confidential information. It’s worth pointing out that a key factor in the decision was that the Company agreed to provide appropriate safeguards in respect of any client confidential or third party data held on the computers, and that the inspection and imaging was to be carried out by specialists at the employer’s expense.