07 Jul 2011
Employers liability for phone hacking
Recent disclosure of the use by News of the World of private investigators to unlawfully access private telephone messages should serve as a reminder to employers that they must consider carefully the instructions which they give to investigators acting on their behalf in relation to employment disputes.
It is not uncommon for employers to instruct private investigators in relation to employment disputes. Typically these will concern a situation such as an individual who is suspected of working with a competitor in breach of their contractual obligations, or of working at a time when he or she is claiming to be too ill or disabled to attend for work. The use of private investigators in such situations is not unlawful and the courts will treat evidence of deception on the part of employees, which is uncovered by the use of such investigators, as admissible and credible evidence. However, as recent events have shown, legislation is in existence which renders unlawful the unauthorised accessing or interception of messages on telecommunications systems and hacking into messages on mobile voicemail accounts is thought to fall foul of this.
Both in terms of avoiding liability for being part of the conspiracy to carry out unlawful activities, and avoiding reputational damage from being perceived to have authorised such unlawful content, employers should ensure that when they instruct an investigator, clear instructions are given that unlawful activities are not to be undertaken.