Insights

Nighat Sahi

Published 13 May 2024
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Use of Employee WhatsApp Messages in Court

There’s been a lot in the press recently about politicians and their WhatsApp messages, particularly when a politician comes before a public enquiry. But looking at the wider implications, what is the position when it comes to employee WhatsApp messages and the workplace? And more particularly, what happens when an employer seeks to rely on unlawfully obtained employee WhatsApp messages in employment law proceedings?

FKJ v. RVT and others

The High Court case FKJ v. RVT and others, looked at these issues and provided some useful guidance.

The facts

The claimant who had been dismissed for misconduct, brought a claim against her employer for sex discrimination, unfair dismissal and wrongful dismissal. In successfully defending these claims, the employer submitted thousands of the claimant’s WhatsApp messages as evidence.  They had been obtained after the claimant issued her claim and it was the employer’s case that some of the messages had been found on her work laptop when she returned it, and some had been sent to them from an anonymous source.

The messages undermined the claimant’s credibility, and it was her case that the employer had ‘’hacked’ her WhatsApp account to obtain them.

Having been unsuccessful in the tribunal, the claimant then issued High Court proceedings in respect of the misuse of her private information, claiming that she had a reasonable expectation of privacy in respect of the messages as they related to her professional, social and private life.

The employer unsuccessfully argued that the claim for misuse of private information should be struck out. They denied the hacking accusation.

The findings

Although this was an interim decision, the judge hearing the matter made a number of useful observations.

Legitimate Expectation of Privacy

The existence of a legitimate expectation of privacy will depend on a number of facts. These include the status of the sender and the recipient, the nature of the messages and how they came into the possession of the user. In this case, the judge found that there was no doubt that the messages involved a legitimate expectation of privacy as they were private messages from the claimant to her partner and her best friend. They contained information about her professional, social and private life, including her health and sex life.

The judge held that the fact that the material may be on a work laptop did not affect the expectation of privacy. It was noted that the employers had provided no explanation or authority for the proposition that private information downloaded to a work laptop loses its private character.

Correct procedure to be followed by employers on receipt of messages

The judge also made it clear that on receipt of the messages, the employer should have immediately returned them. At the time the employer came into possession of the messages, there were no legal proceedings (they had not yet been issued) and there was no reason to keep them. In any event, even if proceedings had already been issued, keeping private communications would have been prima facie actionable. The correct procedure would have been to return them and then seek disclosure in respect of them.

The procedure for excluding unlawfully obtained messages from proceedings

The claimant chose to bring proceedings in the High Court. However, the judge also found that the claimant could have sought to exclude the WhatsApp messages in the tribunal, although there was a real possibility that they would have been allowed in any event. However, the tribunal had no jurisdiction to consider a misuse of private information or hacking claim.

Comment

In some circumstances, it may still be acceptable for employers to retain or use information left by employees. This will depend on whether the information attracts a reasonable expectation of privacy. All the surrounding circumstances will be taken into account in so deciding. This might include whether there are any employer policies that clearly state employees must not use work devices for personal use.

Another fact to bear in mind is proportionality as in this case, the employers had retained thousands of messages. Only about 40 of these were relevant to the issues.

However, the overriding message is that great care is required if an employer comes into possession of personal employee WhatsApp messages. In any circumstances, it is prudent to review employer policies, to ensure that there is as much clarity and understanding about the status of such messages as is possible to achieve.

If you think this may affect you as an employer or employee, please contact Nighat Sahi and Emily Jaye at: nighat@rswlaw.co.uk and emily@rswlaw.co.uk.

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