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Employment update
  • Published:
    23 October
  • Area of Law:
    Employment

Can employees' work emails be employers' property?

Do employers have a claim to property in emails or the contents of emails sent by employees from the employer’s email accounts?  No, said the High Court in Capita plc & another v Darch & others.

Facts

Capita sought a number of interim injunctions against former staff who set up a rival company. These included a draft order sought by Capita for the defendants to:

“forward to the claimants’ solicitors copies of all emails that they have received into any non-Capita email account from any email account at Capita (including their own)”

The claimants argued that the emails and/or their contents were Capita’s property. The order requested was not limited in any respect and therefore covered personal and private emails sent from the employer’s email accounts.
 
The High Court decisions

The Deputy Judge dismissed the application and subsequent appeal.

The claimant’s argument that the emails and/or their contents were Capita’s property was not well founded, the judge referring to comments from previous Court of Appeal judgements:

“When information is created and recorded there are sharp distinctions between the information itself, the physical medium on which the information is recorded and the rights to which the information gives rise. Whilst the physical medium and the rights are treated as property, the information itself has never been”

The judge concluded that the contents of emails in the claim were not property.  The judge went further and considered that even if such an argument had been correct, the width of the order sought was excessive and “would infringe the right to respect for private and family life” guaranteed by Article 8 of the ECHR.

Comment

Capita had misguidedly attempted to depend on a purely proprietary claim and had also not considered any balancing act in respect of the rights of each party that should be carried out.

Whilst there is conflicting recent case law, employers should be careful that they do not treat their employee’s emails as the employer’s property.  Any request for disclosure should not make this argument. Employers have alternative arguments for disclosure of emails, such as a legal right to the content of the emails in the context of an agency relationship (i.e. that a principal is entitled to require production by the agent of documents relating to the affairs of the principal, including after the termination of the agency relationship).  In any context where employees personal and private affairs are potentially infringed however, account must still be taken of the issues of the width and proportionality of disclosure.

For more information please contact a member of our Employment team.

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