Do employees lose confidentiality in privileged material because they store or send it from their employer's laptop or email accounts?

One of the issues in Taylor & Ors v Evans was whether the defendant was entitled to deploy a privileged email sent by another party to the proceedings – an employee of the defendant – to her lawyer. That email was stored on the employee's work laptop (although she thought, mistakenly, that it had been deleted before she handed the laptop to her employer). The employer sought a declaration that the email was no longer privileged, because confidentiality had been lost (against the employer).

Chamberlain J concluded that confidentiality had not been lost. Although the laptop belonged to the employer, that did not, in itself lose confidentiality. The employee had told her employer that she had removed all personal data before handing over the laptop. The employer might have been able to argue that any documents left on the laptop could be assumed not to be "personal", but in this case there were messages revealing that the employer was aware that the employee had failed to successfully remove all personal data. Furthermore, the laptop had been searched by a data protection officer, who should have been aware of privilege (and the relevant email had been marked privileged).

This case mirrors the approach adopted in the case last year of Jinxin v Aser Media, where it was held that just because a company can access its employees' emails and documents (and the employees know that), that does not mean that confidentiality has been lost between the company and those employees. The reasonable expectation of employees is that the company cannot use private information belonging to them and stored on the company's servers "for any purpose whatsoever, including collateral gain". In Jinxin the relevant email had been sent from an employer-provided email account, but the position was the same where the document was saved on an employer-owned laptop.

However, both Jinxin and Taylor conflict with an earlier decision, Simpkin v The Berkeley Group, where it was held that an employee had no reasonable expectation of privacy given the employer's IT policy (signed by the employee) which allowed the employer to monitor the employee's emails without consent. 

This point needs to be clarified by the Court of Appeal – but the direction of travel for now seems to be that employees do not lose confidentiality in privileged material just because they store or send that material on or from their employer's laptop/email accounts.