Thu 02 Feb 2023

Employee entitled to reasonable expectation of privacy in relation to WhatsApp messages

Employers must consider employee privacy when defending claims


In FKJ v RVT & Ors the claimant had commenced a fairly unusual claim of misuse of private information by her employer.  The background to that unusual claim was that the claimant had been dismissed by her employer for falsifying a timesheet.  She subsequently raised an employment tribunal claim that included claims for unfair dismissal, wrongful dismissal and sex discrimination and had been unsuccessful with these. 

The employer had obtained 18,000 of the claimant’s WhatsApp messages that they claimed had either been found on the claimant's work laptop after her dismissal, or were received via letters from an anonymous source.  The messages obtained amounted to “several years-worth of day-to-day information about [her]  professional, social, and private life, including about her health and sex life”, and they included images “of the most intimate kind” that had been sent to her husband.  Some of these WhatsApp messages became a significant component of the employer's defence before the employment tribunal. The tribunal found some of the messages undermined her credibility and that others demonstrated that some of the conduct complained of was either consensual or did not happen.  The claimant had not raised any issue of admissibility of the messages before the tribunal.

Although unsuccessful in her tribunal claim, the claimant subsequently began a misuse of private information claim before the High Court in England.  The claimant alleged the messages had been obtained by her employer hacking her WhatsApp account.  Her employer made an application for strike out of the misuse of private information claim based on abuse of process.  The High Court rejected this argument whole heartedly.  The judgment records that "It cannot be seriously contested that the claimant had a reasonable expectation of privacy in her WhatsApp messages".

The judgment also confirmed that, given the obviously private nature of the information, the proper course of action on the employer obtaining the messages would be to have immediately returned them to the claimant.  Had there been legal action going on at that time, the claimant or her solicitors would have been under an obligation to disclose any messages that were relevant to the case.

The judgment is an interim decision only refusing the strike-out application made in the misuse of private information claim.  It remains to be seen whether the claimant will be successful when the merits of the case are heard. 

However, the comments made in the judgment on the employer's handling of the messages, and what they should have done on receipt of them, are of importance.  This case dealt with the private nature of WhatsApp messages, but the principle would extend to any other "evidence" of this nature in respect of which an employee would have a reasonable expectation of privacy. 

Not only might misuse of clearly private information belonging to employees expose employers to a variety of possible claims, holding and processing such personal data is also highly likely to give rise to a breach of data protection law, given the need for fair, lawful and proportionate processing of personal data, consistent with individual rights. 

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