Court rules on what employers can see on your work laptop

Employees who use their employer-provided computers for personal emails, private data or personal business may not be able to rely on the constitutional right to privacy if the device is inspected for a legitimate work-related reason, the Employment and Labour Relations Court has ruled.

The finding was made in a case involving Lucy Wacheke and Royal Tulip Canaan Nairobi, where the applicant challenged both her dismissal and the inspection of her work computer.

The court ultimately found that her dismissal was procedurally unfair and awarded her compensation, but rejected her argument that the inspection of the employer-owned computer violated her right to privacy.

Wacheke, who worked as a sales account manager at the hotel, was dismissed after an incident involving the double-booking of a conference room.

The employer sought to establish whether she had been checking her work emails and the events calendar.

According to the judgment, the inspection uncovered several issues, including failure to check work emails, incorrect Banquet Event Orders, failure to check the events calendar and the use of the work computer for her personal business.

The court noted that Wacheke had admitted configuring her personal email on the work laptop.

She had also configured her work email account on her personal mobile phone.

The inspection became part of the evidence relied upon by the employer in the employment dispute.

In determining the privacy question, the court considered an earlier decision, Peter Apollo Ochieng v Instarect Ltd, in which it was held that workplace emails and communications are the prerogative of the employer and that the time, tools and resources used for such communication belong to the employer.

The court then examined the circumstances surrounding the inspection of Wacheke's computer.

“The inspection of the Claimant's work computer was triggered by the double-booking incident,” the judgment states, explaining that the purpose was to establish whether she had been checking her emails and the events calendar.

According to the ruling, the court found that the inspection had been carried out by the employer's officers on the employer's own computer and for the purpose of verifying use of official work systems.

“The inspection was lawful, proportionate and conducted for a legitimate business purpose,” the ruling reads in part.

The court consequently rejected the privacy claim arising from the inspection.

The ruling specifically addressed the situation where an employee puts personal information on an employer's equipment.

The court stated that an employee who uses an office computer for personal business cannot successfully claim infringement of privacy where the employer exercises its prerogative to inspect the computer to verify its usage.

It added a warning to employees who mix personal and official activities on company systems.

“Umber light must always start blinking whenever an employee starts to communicate private matters through the employer's official emails, and/or through official computers,” the judge stated, also referring to the storage of personal data on official computers.

The court went further, holding that “having found that there is no privacy in the data or communications done through the employer's computer,” the respondents had not violated Wacheke's right to privacy by inspecting the machine.

However, the ruling was based on the circumstances of the inspection rather than a finding that employers can access anything on an employee's computer without limits.

The court specifically relied on the inspection being connected to a work issue and being lawful and proportionate.

The privacy finding did not determine the separate question of whether Wacheke's dismissal was fair.

The court found that her dismissal was procedurally unfair and awarded her two months' salary in lieu of notice, amounting to Ksh255,300, based on her monthly salary of Ksh127,650.

It also awarded Ksh382,950 for unfair termination and Ksh500,000 for harassment and rights violations, bringing the total award to about Ksh1.14 million.

Other claims, including Ksh1.9 million in commissions, Ksh638,250 in gratuity, future salary and access to work computers, were rejected.

The court also noted weaknesses in the employer's evidence in other aspects of the case, including the failure to produce crucial CCTV footage and call certain witnesses.