We are often asked whether you can or can’t take any document you want as evidence in a potential claim against your employer. (For our purposes here, the term ‘document’ includes emails and other forms of text-based communication.) This is a particularly important question when it comes to documents which your employers would argue are confidential.
You can be sacked for taking confidential documents
The case of Brandeaux vs Chadwick (2010) looks at when an employee can take confidential documents from an employer and use them in an employment tribunal case. In this case Ms Chadwick, the employee, had forwarded a vast volume of confidential material to her personal email account. When she did this there was no real whistleblowing dispute – she was just trying to gather evidence to show unfair dismissal.
The upshot? If you do this is and your employer finds out, you can be lawfully sacked for gross misconduct, which is exactly what happened to Ms Chadwick.
If on the other hand there is a serious regulatory matter, such as fraud or other misconduct by your employer, then you may be entitled to take documents from your employer and use them in an employment tribunal case or negotiation. But you shouldn’t take hundreds of documents like Ms Chadwick did – only consider the most relevant ones – and you should be careful how you copy the information.
What can employers find on a computer?
Anything done on a computer or smart phone, even if deleted, can in theory be detected by your boss, and furthermore they can often ‘track’ what you print. Some employers at the start of any litigation will order a forensic examination of a computer and/or smart phone to see if they can catch you out.
If you are determined to take documents, photocopying hard copies might be an option, or taking screen prints or photos. Obviously this is a matter for you and we don’t necessarily advise doing it.
Top TipsTaking confidential documents
Don’t email confidential documents to yourself
Make sure there is a regulatory breach before you copy anything
Only copy the minimum documents
What about after dismissal?
After you have been dismissed you have more room for manoeuvre, because you have already been sacked! If you still have access to the server or emails, for example on a smart phone, then using or forwarding data would not destroy a future case, because your employer can’t argue that it was a reason to sack you.
How you come by evidence is important. Some months ago one of our lawyers advised a woman who, soon after telling her employer that she was pregnant, was sacked. After her dismissal she was anonymously sent a copy of an email from her boss to another member of staff, this email made clear that the firm intended to sack her because she was pregnant. She was entitled to keep this copy, but had she instead hacked into her boss’s email account before she had been dismissed the situation would have been trickier. Needless to say, we achieved a large pay out within a settlement agreement on this one!
If you have a genuine regulatory or whistle blowing concern then, following the Brandeaux case, you can use your employer’s confidential information to make a report to the regulator, but it may be best to avoid copying your employer’s confidential data to your personal computer. You could, for example,compile a report using the information on the system at work, without actually removing it.
In another case which we conducted, our client had retained the whole of her email inbox on her phone. She had been entitled to have this because the email system was synchronised to her phone. The employer tried to use the Brandeaux case against us, but because our client hadn’t done anything against company policy she won. It was true that she should have returned the emails once she’d been dismissed, but by then the employer couldn’t argue that that was a reason for dismissing her.
The other feature of that case which distinguishes it from Brandeaux is that there was a whistleblowing issue – the employer had been ‘cooking the books’ or committing corporate fraud, and therefore our client was much more likely to be treated leniently by the tribunal, and be allowed to use the documents which she had taken.
So how can you prove your case if you don’t have the documents? If you sue your employer the court will order the other side to show you all of the documents they have that are relevant; this includes documents that help your case. This process is known as “disclosure”. You can also make a subject access request under the Data Protection Act. The problem here is that many unscrupulous employers will hide evidence and only disclose what they want the tribunal to see. So it’s good to have specific times and dates of relevant emails to hand.