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This recent decision of Master Davison raises some interesting points about employers' use of employees' personal WhatsApp messages.
In December 2017 the claimant (a solicitor) was dismissed for falsifying a timesheet. In March 2018 she issued proceedings in the Employment Tribunal alleging that the managing partner, RVT, had subjected her to sexual harassment. The Tribunal dismissed the claimant's claims noting that her personal WhatsApp messages (18,000 of which were included in the hearing bundle) undermined her credibility and demonstrated some of the conduct she complained of had not taken place.
It was the respondents that disclosed the WhatsApp messages during proceedings, revealing that they held copies of all the messages the claimant had exchanged with her husband and best friend during the course of her employment. These messages contained years’ worth of information about the claimant’s private life, including messages and images of “the most intimate kind”.
RVT said some of the claimant's messages had been found on her work laptop after she was dismissed and the rest had been received via two anonymous letters. The claimant claimed that RVT had "hacked" into her account by using her phone to set up WhatsApp Web on one of the respondents’ computers.
Master Davison's Decision
The claimant did not apply to have her WhatsApp messages excluded from evidence in the Tribunal. Instead, she issued a claim for misuse of private information in the High Court. It was an application to strike out this claim (among other things) that was before Master Davison. The Master dismissed the defendants’ application and made several comments that have wider relevance for employers and their advisors.
The Master held "it cannot be seriously contested that the claimant had a reasonable expectation of privacy in her WhatsApp messages" and that, on basis of the material currently available, "the issue will more likely be the extent rather than the principle of the claimant’s recovery". This gives employers a useful indication of the starting point they will likely face should they make use of an employee’s personal WhatsApp messages, namely a presumption that such messages are private and should not have been used or retained by the employer.
Master Davison went on to comment that "no explanation or authority has been offered for the proposition that private information downloaded to a work laptop (a very common scenario) thereby loses its private character". This decision is not binding and was made without full exploration of the facts or evidence. Further, it seems reasonable to expect that the analysis may be different if the messages were, for example, stored on a work device where the employer had explicitly prohibited personal use and expressly informed the employee that messages on that device may be monitored. Nonetheless, Master Davison’s assessment provides a salutory warning to employers that they cannot assume messages will automatically lose their private character just because they are held on a company device.
The Master’s perspective on what employers should do if they come into possession of an employee’s personal messages was clear: “notify the claimant and deliver up the messages to her”. Master Davison suggested this was the case even if the messages were relevant to anticipated or live litigation since retaining them would be “an impermissible form of self-help which it is the policy of English law to discourage”.
However, it is worth remembering that the question of whether an employee’s messages are admissible as evidence is wholly separate from the question of whether the employee would have a well-founded claim for their misuse, since, as Master Davison noted, “English courts tend to admit relevant evidence – even when improperly obtained or procured”. Thus, where an employer finds a cache of relevant personal messages it wants to deploy in proceedings, the safest (and proper) course would be to return these to the employee and rely on the employee’s disclosure obligations to ensure they are available in proceedings. However, if this has not been done by the time advice is sought the messages may still be admissible even if the employer has arguably acted improperly in obtaining and/or retaining them.
Proportionality is also a key factor to bear in mind. The Master was particularly troubled that in this case approximately 80,000 of the claimant’s messages had been retained by the defendants. The volume of material was problematic in itself and made all the worse by the fact that only about 40 messages were arguably relevant to the issues between the parties. Again, the analysis may be different if the employer had found 10 messages, eight of which were probative to a live dispute.
Different considerations might also apply where WhatsApp had been partly used for work purposes or the messages directly related to the workplace. The intimate and personal nature of the messages seems to have been important to the Master’s reasoning that the employer should immediately have returned them.
As an addendum to his decision, Master Davison expressed concern about the permanent Restricted Reporting Order (“RRO”) the Tribunal had made in respect of proceedings, commenting that the grounds for doing so appeared “slender” and inconsistent with recent authority. Consequently, Master Davison expressed the intention of referring the RRO to the Regional Employment Judge for reconsideration. This is a good reminder that satellite litigation always comes with risks, including those that may not be anticipated, in this case, the potential loss of anonymity that the claimant had previously secured.
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