In the modern workplace, a computer or laptop on an employee’s desk may be company property, but the boundaries of what the employer can inspect are increasingly being tested in court.

A recent Employment and Labour Relations Court judgment has held that staff who use employer-owned computers or laptops for personal business cannot automatically claim privacy when the machines are inspected for legitimate work purposes.

The court said the employer may inspect its own computer where there is a legitimate business reason, even if the device contains an employee’s personal emails, private data or business information.

The decision offers a timely warning to workers who mix personal and professional communications—and to employers navigating the line between workplace oversight and employees’ private lives.

The ruling arose from a dispute between Lucy Wacheke, the former Royal Tulip Canaan Nairobi sales account manager, and the hotel and its then-acting general manager.

She was sacked in May 2022 over a double-booking of a hotel conference room, failure to check the events calendar and work emails, and other alleged performance and conduct breaches discovered during an inspection of her work computer.

Ms Wacheke sued through lawyer Morara Omoke claiming she was unfairly and unlawfully dismissed after being verbally sacked by the hotel’s acting general manager during a May 6, 2022 meeting over the double-booking involving a client’s event.

The lawyer argued that she was subjected to harassment, physical assault and violations of her constitutional rights.

Ms Wacheke said the manager summoned her and used abusive and demeaning language, accusing her of mishandling the situation because the guest was unhappy.

She said he then told her, “Just know that was a big mistake for a client to complain. Just know you are dismissed. Please get out of here now.” Ms Wacheke also testified that the manager followed her to her workstation, grabbed her hands and ordered an IT officer to lock her computer.

The hotel said its inspection found unread work emails and incorrect banquet event orders.

It also found that Ms Wacheke had configured the office computer with an Outlook account for Pride East Africa Limited, her personal business.

She admitted using the work computer for private business. She said the arrangement arose during Covid-19 after her salary was cut by half and an IT officer helped transfer data from her personal laptop to the office computer.

The court found that Ms Wacheke was unfairly dismissed, but rejected her claim that inspection of her office computer breached her constitutional right to privacy.

She had worked for the hotel since October 2016 and received a one-year sales account manager contract beginning April 5, 2022, at a gross monthly salary of Sh127,650.

The court found the inspection lawful because it was conducted on the employer’s computer to investigate the booking problem and check use of work systems.

“The inspection was lawful, proportionate and conducted for a legitimate business purpose,” the court ruled.

“Amber light must always start blinking whenever an employee starts to communicate private matters through the employer’s official emails, and/or through official computers,” it said.

It rejected the claimant’s privacy claim, holding that the employer had not breached Article 31 by inspecting its own equipment.

The court found that the hotel had valid grounds to discipline the employee because she generated the banquet event order without checking the events calendar. She admitted failing to check it during the last two weeks of April.

But the employer lost the case on termination procedure. The court found that the manager dismissed Ms Wacheke on May 6 before the disciplinary process could take place. The subsequent notices for hearings on May 27 and August 25 could not repair that decision.

“The subsequent show cause letters and disciplinary hearing notices were an attempt to retrospectively sanitise a decision that had already been made,” the court said.

“Any attempt to conduct a disciplinary hearing after an employer has already dismissed an employee is a nullity in law,” it stated.

The case also touched on the handling of workplace evidence. Ms Wacheke told the court that CCTV cameras covered the general manager’s office and could have confirmed what happened during the May 6 internal management meeting about the double-booking.

The hotel produced footage showing her leaving the premises, but did not produce footage from inside the general manager’s office, where the claimant alleged the manager verbally dismissed and harassed her.

The hotel’s human resources manager confirmed that cameras were installed in the general manager’s and sales offices, but said she had only viewed the footage showing Ms Wacheke walking through the basement towards her car.

The court also noted that the hotel did not call the manager, the former HR manager or the IT officer who downloaded the CCTV footage to testify.

The court questioned why the footage covering the events inside the general manager’s office had not been produced and said its omission was prejudicial to the respondents’ case.

“The workplace should be the epitome of decency and dignity for workers and compliance with fair procedure for separation between the employer and his employee,” the court said.

It awarded Ms Wacheke a total of Sh1.1 million, comprising Sh255,300 in notice pay, Sh382,950 for unfair termination and Sh500,000 for harassment and violations of her rights to dignity, fair labour practices and fair administrative action.

The court dismissed her claims for Sh1.9 million in commissions, Sh638,250 gratuity, future salary and access to the work computer.

→ jwangui@ke.nationmedia.com

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