Could a warning of criminal prosecution be the next step in preventing employees taking your clients’ information with them?

Posted on: March 16th, 2017

In January this year, a recruitment agency employee was found guilty at Warrington Magistrates’ Court of unlawfully obtaining data under section 55 of the Data Protection Act 1998.

Rebecca Gray emailed the personal data of approximately 100 of the agency’s current and potential clients to her personal email address before leaving her job. Ms Gray then started work at a rival recruitment company and used the information to contact the individuals.

Ms Gray pleaded guilty and was fined £200 and ordered to pay £214 prosecution costs and a £30 victim surcharge.

What does this mean for a Recruitment Agency?

It is common to include requirements to return company property and keep client information confidential when employment ends. Civil action is then open to the employer to enforce the terms or obtain a remedy if there has been a breach. This case highlights another potential consequence that could become a weapon in the employer’s arsenal: the warning of prosecution for a crime.

While the financial cost to Ms Gray may seem small given the circumstances and the potential benefit to the employee and their new employer, a criminal record and bad publicity is arguably a greater deterrent than being on the receiving end of a civil claim. A new employer is unlikely to be impressed to find out that a candidate or employee misused confidential information. Ms Gray did subsequently lose her new job.

A job applicant’s value is boosted by their following but recruitment agencies should be aware of the difficulties and restrictions that job applicants face and not encourage the taking of client information in breach of employees’ contracts. Recruiters that do may find themselves being sued for inducement to breach contract or even prosecuted for procuring the same criminal offence Ms Gray pleaded guilty to.

Steve Eckersley, ICO Head of Enforcement, gave his view:

“Taking clients’ personal information when you change jobs for your own benefit or benefit of the company is against the law. What people think is a minor mistake can lead to job loss, a day in court and a fine. Most people know it’s wrong but they don’t seem to realise it’s a criminal offence and that they could end up in court and also lose their job.”

What about clients that we introduced to the employee?

The case does raise questions over former employees contacting individuals introduced through work and information that is publicly available. What happens when contacts are added on professional or social media websites such as LinkedIn? Can they no longer be contacted? The position would depend on the facts of each case and whether the individuals have given the requisite permission under data protection law.  It is also increasingly common for employers to include provisions in employment contracts that specifically deal with ownership of LinkedIn contacts and what to do with them when employment ends.

In the case of LinkedIn, the user agreement states, “When you share information, others can see, copy and use that information”. This could be interpreted that the individual accepts the use of their information they allow in the public domain, including being sent a message if the user’s privacy settings allow it.

For further information, please contact Mark O’Halloran, Partner and head of Employment and Commercial Services on 023 9236 4959 or markohalloran@coffinmew.co.uk.