The facts

Comments made by the High Court judge in this case about the privacy of WhatsApp messages (which we discuss below) are very interesting.  However, employers should note that other courts will not be required to follow them and that they relate to the specific, and quite unusual, facts in this case. 

An ex-employee who had been dismissed brought a claim of sexual harassment against her employers (which were connected law firms) and their managing partner (the parties in this case were anonymous, so we refer to them in this alert as “the employers”, and “the ex-employee”). 

Much of the evidence on which the employers relied in the employment tribunal consisted of the ex-employee’s own WhatsApp messages: 18,000 messages were included in the tribunal bundles. These messages (which had been obtained by the employers after her dismissal but before the employment tribunal claim had been issued) were between the ex-employee and her partner, and between her and her best friend. The messages went back several years, and included day to day information about her professional, social and private life, including her health and sex life and messages and images which the court later described as being “of the most intimate kind”.  The employers claimed that some of the messages had been obtained by accessing the ex-employee’s work laptop after she had been dismissed.  They also claimed to have received other messages from an anonymous source.  The ex-employee said that this was untrue and that the employers had hacked her WhatsApp account.  The ex-employee did not seek to exclude the messages from the evidence in the tribunal. 

Some of the messages undermined the ex-employee’s credibility and demonstrated that the harassment of which she had complained either did not happen or was consensual.  Relying on this evidence, the employers successfully defended the tribunal claims. 

However, the ex-employee then brought High Court proceedings for misuse of her private information. 

The employers applied to the High Court for a strike-out of the ex-employee’s High Court claim.  The High Court refused the application, the judge commenting that it seemed likely that the strike out application had been made as an “attempt to stifle a claim that the defendants would prefer not to contest”.  

As this was a strike-out application, the court did not have to reach concluded findings on the facts or the law. However, comments in the judgment (which will not be binding on other courts) about the ex-employee’s reasonable expectation of privacy and what the employers should have done with the messages will be of particular interest to employers.

• The messages allowed the employers to “rove through several years of the claimant's day-to-day communications on all aspects of her life with those closest to her”. They were between the ex-employee and her partner and her best friend, and some of them were particularly intimate. Given the nature of the communications, there was, according to the judge, no doubt that the ex-employee had a reasonable expectation of privacy in relation the WhatsApp messages.  
• The employers had argued that the ex-employee could not have an expectation of privacy in relation to material saved or downloaded to her work laptop during working hours. However, the judge rejected this argument, commenting that the employers had given no explanation or authority for the proposition that private information downloaded to a work laptop loses its private character.  The judge also commented that this was a “very common scenario”. 
• Only a fraction of the messages obtained by the employers were relevant to the tribunal claim. The messages had been accessed before the tribunal proceedings had been brought. There was no justification for their retention or use.  The employers had an immediate duty to notify the ex-employee of the messages and deliver the messages to her. 
• Even if the proceedings had been alive when the employers accessed the messages, the employer should have returned the messages to the ex-employee or her solicitor, who would then have had disclosure obligations in relation to them.  

What does this mean for employers?

This case points to significant risks in using private WhatsApp messages in litigation and in retaining messages if they come into the employer’s possession.  Principles in this case may also extend to the use of private messages in internal processes – for example, grievance and disciplinary decisions. 

However, there are important nuances to be taken into consideration.  Whether there is a legitimate expectation of privacy will always be fact sensitive.  Considerations will include the status of the sender and the recipient, the nature of the message and how they came to be in the possession of the user.  It may also be relevant where WhatsApp messages are routinely used for work, and on work devices.  Having a policy in place clearly setting out that employees do not have a reasonable expectation of privacy over messages on work devices may also be key. 

If considering using WhatsApp messages (or similar) in litigation or internal proceedings, employers should consider carefully whether the individual has a reasonable expectation of privacy over the message, taking all the facts into account.

FKJ v RVT and Others