WhatsApp is one of the most popular messaging platforms and is increasingly used in the workplace to communicate with colleagues. WhatsApp messages between employees regularly form part of discoverable documents in industrial tribunal proceedings, often ending up as key pieces of evidence in a hearing bundle.
On 11 January 2023 in the case of FKJ v RVT, the High Court in England considered the prospects of a former employee’s claim for compensation for breach of privacy rights by the employer in accessing the employee’s WhatsApp messages, which the employer had used as evidence in an Employment Tribunal claim.
The claimant was a heavy WhatsApp user and the employer accessed some 18,000 WhatsApp messages sent by the claimant, who had been employed as a solicitor. The messages took up 900 pages of the Tribunal bundle. The employee brought a claim for sexual harassment against her employer and the employer used some of these messages to undermine her credibility.
The messages contained several years’ worth of day-to-day information about the claimant’s professional, social and private life, including about her health and sex life. Some of the messages and images, which she shared with her partner (now husband), were of the “most intimate kind”.
The claimant was first made aware that her employer had accessed the messages when she read the employer’s Grounds of Resistance in the Employment Tribunal claim. The claimant’s case was that her employer hacked into her WhatsApp messages by setting up the computer-based “WhatsApp Web” and using her smartphone to scan the QR code generated, which operated as the only authorisation required by the site. The employer was then able to capture the entirety of her WhatsApp messages.
The messages were admitted as evidence in the Tribunal. However, the claimant subsequently issued a claim for damages in the High Court, alleging that the employer had misused private information. The employer applied for her claim to be struck out.
The employer’s strike out application was refused by the Court. It was taken into account that the claimant would ordinarily have had a reasonable expectation of privacy. No explanation or authority had been offered for the proposition that private information downloaded to a work laptop would no longer be private. Given their obvious privacy, there would ordinarily have been a duty to notify the claimant and deliver the messages to her, particularly if these messages had, as alleged, come into the employer’s possession by way of an anonymously sent message prior to the Tribunal proceedings being issued.
The decision does not mean that the employer was found liable for misusing private information. The High Court will consider the merits of the claim at a future hearing. This decision highlights the risks that an employer may face when using an employee’s private WhatsApp messages as evidence in an industrial tribunal hearing. The fact that some were admitted as relevant in those proceedings or that they had been downloaded onto a work laptop will not necessarily mean that the employee’s rights to privacy can be ignored and substantial damages may be awarded.