In this case, the High Court considered whether a document was privileged, looking at whether it was confidential as between the employer and the employee, and whether the employee claiming privilege had “clean hands”.

The facts

Mr Simpkin was asked to resign from his position as Group Finance Director of the Berkeley Group and as a statutory director of the Berkeley Group Holdings PLC. The remuneration committee and board of his employer decided that, when his employment terminated, Mr Simpkin would not be treated as a “good leaver” for the purpose of long term incentive plans (LTIPs) and the bonus scheme. Mr Simpkin and his employer ended up in litigation.

Mr Simpkin had sent an email from his work email account to his personal email account, attaching a word document which he had drafted setting out an analysis of his expectations under the LTIPs. He then forwarded this to his lawyer to obtain advice in relation to divorce proceedings. Mr Simpkin said that the email and the attachment attracted legal advice privilege and litigation privilege.

The employer successfully argued that the email and the attachment were not confidential as between Mr Simpkin and his employer, and so should not benefit from privilege. In order to be confidential as between Mr Simpkin and his employer, he would have had to have a reasonable expectation of privacy. The employer pointed out that the attachment was created on Mr Simpkin’s work computer, at his office, and saved to that computer. Mr Simpkin had signed a copy of the IT policy which made it clear that emails sent and received on the company’s systems were the property of the employer. The IT department had access to all the company’s computers and email accounts and did not need authorisation before accessing their computers or accounts. Mr Simpkin’s employment contract made it clear that his emails were subject to monitoring without his consent. The document was also created in the course of his employment: it contained an analysis of the company’s financial performance by its group FD, using company information, and was created on and transmitted via the employer’s IT system. The document was saved onto a folder on one drive of the company’s central servers, it was not password protected and was not segregated from his work-related documents. Mr Simpkin would also have been aware that the contents of his email account would also have appeared in his PA’s email account, and she had direct access to his email folder. For these reasons, Mr Simpkin could have no reasonable expectations of privacy, and the document was not therefore confidential as between him and his employer. Mr Simpkin could not therefore prevent his ex-employer from having access to the document on the grounds of privilege.

For a court to grant an equitable remedy (such as a restraining order or an injunction) the party applying for the remedy must have clean hands. Here, there were “stark inconsistencies” between the account put forward by Mr Simpkin in his witness statements and the account set out in the document. Mr Simpkin was trying to avoid these inconsistencies being revealed to the court, and being cross examined on them. The court also held that, even if the document had been confidential and privileged, the judge would have refused the application for an order restraining disclosure of the document because Mr Simpkin did not have “clean hands”.

What does this mean for employers?

This case does not create any new law, and is a welcome decision that provided privacy rights have been addressed in an employer's policies, an employee cannot have a reasonable expectation of privacy. The discussion of the law around privilege is a useful reminder of core principles. The dangers of exaggerating evidence when seeking an injunction are also clearly seen in this case.

Nicolas Guy Simpkin and the Berkeley Group Holdings Plc