The Employment and Labour Relations Court has recently considered the increasingly difficult intersection between an employer’s control over workplace technology and an employee’s right to privacy. In Lucy Wacheke Gatere v Royal Tulip Canaan Nairobi & another, ELRC Cause No. E953 of 2022, the Court considered whether an employer could inspect a work computer where the employee had also used it for personal communications and business.
The dispute arose after the Claimant, a Sales Account Manager, was accused of negligence following a double-booking incident. In investigating the matter, the employer inspected her work computer and discovered, among other things, that she had not been checking work emails or the events calendar and had configured the work computer to access her personal business email. The Claimant argued that the inspection amounted to an unlawful intrusion into her private information and violated her constitutional right to privacy under Article 31 of the Constitution. The Court rejected that argument, finding that the inspection was undertaken on the employer’s own computer, was triggered by a legitimate workplace concern and was intended to establish whether the Claimant was properly using the computer for her assigned duties. On that basis, the Court held that the inspection was lawful, proportionate and conducted for a legitimate business purpose. The fact that the employer encountered personal information during that inspection did not, in the Court’s view, convert the inspection into a violation of the employee’s right to privacy.
This finding should however, not be read as establishing an unrestricted right for employers to search employees’ devices simply because the devices belong to the employer. The Court’s reasoning was closely tied to the circumstances before it: the computer was employer-owned, the inspection arose from a specific operational concern, and the purpose was to verify the employee’s use of the system for work. The judgment therefore provides stronger support for purpose-driven workplace monitoring than for unrestricted access to an employee’s personal information. While the Court rejected the privacy claim arising from the computer inspection, it found that the employee had been unfairly terminated. The Court held that the employer had made the decision to dismiss her on 6th May 2022 and that the subsequent disciplinary process was an attempt to retrospectively regularise a decision that had already been made. A disciplinary hearing conducted after termination could not cure that procedural defect.
An employer may have a legitimate basis to investigate an employee’s conduct through workplace systems, but the evidence obtained from that investigation must still be handled within a lawful employment process. The right to investigate and the duty to follow fair disciplinary procedure are separate obligations. One does not cure a failure to comply with the other. Where an investigation becomes necessary, the scope of the inspection should be connected to a legitimate business purpose and should go no further than reasonably necessary to establish the relevant facts.
For employees, the decision is an equally important reminder that using an employer’s computer or email system for personal business carries privacy risks. The Court specifically found that the Claimant had chosen to configure her personal business email on the employer’s computer and held that she could not successfully claim privacy in information encountered during a legitimate inspection of that device.
As Kenyan workplaces become increasingly dependent on email, cloud platforms and employer-issued devices, the boundary between workplace monitoring and employee privacy will continue to generate disputes. The decision provides useful guidance on that boundary, while also making clear that a legitimate investigation cannot excuse an employer from complying with the separate requirements of fair termination.
