When will personal conversations need to be disclosed to an employer?
The cases of Phones 4U Ltd (In Administration) v EE Ltd  EWCA Civ 116 and Pipia v BGEO Group Ltd  EWHC 86 considered when it is appropriate to require staff to disclose personal conversations to their employer.
Phones 4U Ltd (In Administration) V EE Ltd  EWCA Civ 116
The Claimant, Phones 4U, alleged that EE Ltd, the Defendant mobile network operator, had reached an arrangement to terminate or not review their agreements for the supply of connections to retail customers, contrary to the prohibitions on anti-competitive arrangements.
The Defendant appealed against an order that it write to individuals, described as “Personal Material Custodians” ('Custodians'), to request them to give access to their personal mobile telephones and emails. This was to enable a search for work-related communications for material relevant to the dispute to be disclosed. Once this had been done, the devices would be returned to the Custodians and any copies destroyed.
The issues raised were whether the Court of Appeal had jurisdiction over such devices in the context of this particular dispute; whether the order was proportionate; and whether the order violated Data Protection law.
The appeal was dismissed. It was held that disclosure was a pragmatic process aimed at ensuring that the relevant documents were before the court at trial to enable it make just and fair decisions on the issues. The Court of Appeal found that the order had been proportionate, that the court had jurisdiction and consent would be required by the data subject and as such there was no breach of data protection law.
Pipia V BGEO Group Ltd  EWHC 86
The Claimant in this case applied to vary an order for further extended disclosure under the disclosure pilot scheme to include disclosure of various emails, WhatsApp messages and other communications of two key witnesses (the Chief Operating Officer and the Defendant Group's General Counsel). Some of the communications sought were on personal smartphones.
The Claimant argued that, given that the COO had resigned, the Defendant had control of the COO's phone under the terms of his service contract which provided that, on termination, he would immediately return all property belonging to the Defendant.
The Application was granted in part, as it was found that only the documents within the Defendant's control could be ordered to be disclosed. The COO's phone, which gave access to his WhatsApp, Viber and SMS messages, were likely to assist in providing an insight into his intentions.
The General Counsel did not have a contract with the Defendant and any fiduciary duties undertaken were under the parent company. As such, the Defendant had no control over his phone and was not able to disclose this information.
What this Means for Employers
With our increased use of technology, particularly now that more individuals are working from home, it has become easier for the lines between work and personal communications to blur. Courts and Tribunals will aim to strike a balance between pragmatic solutions and having all the necessary documents made available.
Employers need to ensure that their contracts of employment or service agreements make it clear what communications are in their control in the event that disclosure of such materials is required.
This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Valerie Bond to discuss any issues you are facing.