Forensic computer examination – now clearly within the Employment Relations Authority’s ambit

Employees regularly leave employment to start their own business ventures.  However, issues arise when they take confidential information and clients (belonging to their former employer) with them.
Forensic examination of a computer can detect any information that has previously existed on that device, even after it has been deleted.  It is an invaluable tool for employers dealing with potential breaches of confidentiality, or any other computer-related misconduct.

A recent judgment of the Employment Court (“the Court”) confirms that the Employment Relations Authority (“the Authority”) has the power to order the forensic examination of personal computer systems.  Whilst the Authority has previously granted these types of orders (and until this case, its powers had not been questioned), we now have confirmation from the Court that forensic computer searches are able to be ordered by the Authority.
In this particular case, the employer alleged that a former employee had been emailing the employer’s confidential information to their own personal address and to another party, in the lead up to their resignation.  It was also alleged that the former employee breached enforceable terms of a restraint of trade by contacting the employer’s clients after they resigned, prior to starting up a competing business.
To test the veracity of the allegations, the employer sought and obtained witness summonses to search the former employee and their associates’ personal computer systems.
The employer proposed a process for the forensic examination of the computer systems, using an independent forensic computer expert.  However, the former employee opposed this, claiming that the Authority did not have jurisdiction to order the forensic examination of personal computer systems.  The Authority subsequently issued a determination stating that it had not acted outside its jurisdiction.  Click here for a link to the Authority’s determination.
The former employee challenged the Authority’s determination to the Court and a number of other matters before the Authority were put on hold until the outcome of this challenge was delivered.
The former employee’s primary claim was that the forensic examination of personal computer systems amounted to a “search order” as defined by the High Court Rules (“HCR”) 2016.  Section 160(4) of the Employment Relations Act 2000 prevents the Authority from granting “search orders”, so the former employee argued that the Authority was barred from making the order for forensic examination.

The Court disagreed and held an order for forensic examination does not amount to a search order, as defined by the HCR 2016.  The Judge distinguished a “search order” by definition – being the authorised invasion or search of a person’s premises or home, without notice, and under the watchful eye of a supervising solicitor – from the examination of a computer system (which has been delivered to the Authority by its owner), carried out by a forensic computer expert, under the supervision of the Authority.
The issue of privacy was also raised, however the Court held that in this case, privacy concerns were not a basis for excluding potential evidence.  Click here for a link to the Court’s judgment.
There can now be no doubt that the Authority is able order the forensic examination of personal computer systems belonging to former employees.  By dismissing the challenge, the Court has affirmed the long-established principle that the Authority is entitled to review and consider all material relevant to the employment relationship, to assist in a more informed decision-making process.

Author: Madeleine Lister, Associate  

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