07-06-2019

An employer has been awarded final injunctions to prohibit a former employee from breaching post-termination restrictions, with the Court concluding that the reasonable and proportionate review of his emails, which revealed the breach, did not infringe the employee’s right to privacy.

The High Court considered the case of Argus Media Ltd v Halim. Dr Halim worked as a business development manager for the price reporting agency specialising in the area of fertilisers. Having left in August 2018, Argus discovered that Dr Halim had set up a new business offering fertiliser pricing reports to its clients. The company brought claims against the former employee alleging that he had breached his post-termination restrictions.

Dr Halim argued that he did not have to comply with the post-termination restrictions because the company had breached his privacy rights by reading his emails. He argued that this breached the implied term of trust and confidence, and that with the termination of his contract, Argus could not rely on the post-termination restrictions.

Writing for Lexology Carla Feakins, Associate at Lewis Silkin LLP, explained that Dr Halim’s manager had become suspicious that he was not completing handovers during his notice period and so requested access to his inbox. This was inline with the company’s electronic information and communications policy.

After gaining access, the line manager found several emails to Dr Halim’s wife that related to work matters, as well as several emails to his personal account containing Argus’ confidential information. These were used as evidence during the case. However, Dr Halim argued that the policy infringed his right to a private life.

“Judge Freedman held that the Policy was not too broad and the investigation carried out whilst Dr Halim was on garden leave was appropriate,” said Feakins. “This was helped by the fact that the emails Dr Halim sent to his wife were clearly work related, and the Judge found that these were not private communications. The Judge also found that even if Dr Halim’s privacy rights were breached as a result of the investigation carried out, this did not justify a breach of the implied term of trust and confidence.”

Feakins believes that this is a helpful decision for employers, demonstrating that a reasonable and proportionate email trawl need not infringe privacy rights and can uncover wrongdoing.

“However, any searches carried out must be proportionate and special care must be taken where private communications are uncovered,” she added.


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