WhatsApp-ening with Employee Privacy?
Are an employee’s WhatsApp messages still private after being downloaded to a work computer?
In FJK v RVT and others, F was dismissed by her employer, R, for misconduct. Employment Tribunal proceedings followed, in which R relied upon F’s WhatsApp messages as evidence against her. After losing her Tribunal case, F then brought a claim for misuse of private information against R in the High Court. As part of this claim she asserted that R had “hacked into” her WhatsApp to obtain 18,000 of her private messages. R claimed that some of these messages had been found on F’s work laptop following her dismissal, while others had been received in letters from an anonymous source.
R sought to strike out F’s misuse of private information claim, arguing that there were significant problems with the merits of the claim; primarily, that F could not have a reasonable expectation of privacy for material saved or downloaded to her work laptop during work hours. If F’s claim were struck out, this would mean that it would be dismissed by the court and could not be pursued any further – striking out is usually reserved for circumstances where there are no real merits to a claim, meaning that it will just be a waste of the courts’ time, or where the claim is a deliberate abuse of process by the claimant.
Master Davison of the High Court refused to strike out F’s claim. Firstly, R’s argument that F could not have a reasonable expectation of privacy in relation to WhatsApp messages saved to her work laptop clearly did not apply to those messages which had been received via an anonymous source. But secondly, and perhaps more importantly, Master Davison found that R had provided no authority or explanation for the proposition that private information downloaded to a work laptop loses its private character.
Furthermore, the messages were obtained by R before the Tribunal proceedings. Their obvious privacy and the absence of any proceedings to which the messages might be relevant would have put R under an immediate duty to notify F and hand the messages over to her. Even if proceedings had been underway by the time R obtained the messages, the retention of private communications would still have given rise to a claim for misuse of private information, as retaining such information is “self-help”, and discouraged in English law – the correct course of action would have been for R to return the messages to F, who would then have been obliged to disclose them.
While F’s claim for misuse of private information was not struck out at this early stage, it remains to be seen whether the claim will ultimately succeed. However, Master Davison’s judgment should remind employers that, where an employee saves private messages to work equipment, this does not necessarily amount to the employee waiving the privacy of these messages. This is a particularly important consideration for employers who wish to monitor their employees’ activities at work.
Employers looking to monitor employees must ensure that any monitoring of an employee’s internet usage, messaging or emails is reasonable, proportionate and transparent. The possibility of being monitored must also be drawn to the employee’s attention in advance and should be set out in relevant policies.
A comprehensive understanding of monitoring is becoming increasingly important for employers, given the growing number of employees working from home. Ian Machray, partner and head of our Business Services Team, gave a talk on monitoring remote employees, in collaboration with Ziptech Services; you can watch that here.
If you have any questions regarding monitoring of employees, or require other employment advice, please get in touch at [email protected]