UK: Privacy: Misuse of employee’s private WhatsApp messages
After her dismissal for misconduct, FKJ brought a tribunal claim against her former employer, including on the grounds of sex discrimination and alleged sexual harassment by the managing partner, RVT. She lost that claim after the employer used in evidence some 18,000 private WhatsApp messages (some being “of the most intimate kind”) between her and her partner and her best friend, obtained after her dismissal but before she brought a claim. Although the employer said some were obtained by accessing her work laptop and other were received printed out from an anonymous source, FKJ maintained the employer had “hacked” her WhatsApp account to gain access to these messages.
FKJ didn’t seek to exclude these messages as evidence in the tribunal claim and brought a High Court claim in tort for misuse of private information. The High Court refused RVT’s application to have this claim struck out.
As to whether an individual has a legitimate expectation of privacy, this will depend on the circumstances, including the nature of their relationship with the message recipients. The Court noted that given the nature of the messages, with day-to-day information about FKJ’s professional, social and private life, including about her health and sex life to her partner and her best friend:
- there was clearly an expectation of privacy, which was not altered because the messages may have been on a work laptop, and
- the employer should have immediately notified FKJ and returned these messages to her, even if there had been tribunal proceedings on foot at that time.
Key Action Points for Human Resources and In-house Counsel
This case confirms that because private information is downloaded on a work laptop, this does not necessarily mean the employee’s right to privacy can be ignored. If the information is clearly private employers owe a duty to return the private information immediately.
In addition, this decision shows the potential risks to employers of using private WhatsApp messages in evidence in tribunal or court proceedings, as substantial damages may be awarded in High Court claims for misuse of private information.