The Risk of Relying on WhatsApp Messages
Wednesday 22nd February 2023
The High Court has recently considered the risks for employers when relying on employee WhatsApp messages during litigation.
Facts
The parties in FKJ v RVT and Others remain anonymous, however, the case relates to an ex-employee who brought an Employment Tribunal claim against her employers (a number of connected law firms and their managing partner) for sexual harassment. The employers’ evidence consisted largely of the ex-employee’s own WhatsApp messages. The ex-employees WhatsApp messages had been lifted from her work laptop after her dismissal but before proceedings began and over 18,000 messages were included in the bundle of evidence and relied on by the employers. The messages were between the ex-employee, her partner, and her best friend, they went back several years and a large quantity of the messages was sensitive or intimate in nature. The ex-employee did not seek to exclude the messages from evidence, and a number of the messages did confirm that the harassment she alleged either did not happen or had been consensual. Her Tribunal claim was therefore unsuccessful.
The ex-employee then brought a High Court claim for misuse of her private information.
Decision
The High Court refused a strike-out application by the employers and found that:
- despite the messages being on her work laptop, as they were between her and her partner and were intimate or personal, the ex-employee did have a reasonable expectation of privacy;
- just because private messages are sent or stored on a work laptop during work hours does not alter their private nature;
- not all of the messages submitted in evidence by the employers had been relevant to the tribunal claim and as they were obtained before proceedings began there was no justification under data protection law for their retention;
- even if the messages had been obtained after proceedings began, the employers had no lawful reason to keep or use them and should have given the messages to the ex-employee and/or her solicitor who would have had a duty to disclose those which were relevant.
Comment
It is important to note that the facts of FKJ v RVT and Others are unique and the decision will not bind other courts. However, it does pose a cautionary tale for employers looking to rely on WhatsApp or other social messaging services about proper data usage and the steps that can be taken to prevent a similar situation occurring.
Employers will be unlikely to have a right to retain or use personal messages where an employee has a reasonable expectation of privacy. Any employer seeking to rely on private messages should consider the nature of the messages, the identity of the sender and recipient, how the employer came to have possession of them, and, in the case of ongoing litigation, whether they are actually relevant to the facts of the case. Whether that is the case will depend on the facts of the situation.
Employers typically hold a lot of data on their employees. This case highlights the ways an employer can fall foul of privacy laws and the importance of only disclosing relevant documents in litigation.
