Evidence that has come to the employer’s attention can generally be taken into account in disciplinary proceedings. In BC and ors v Chief Constable of the Police Service of Scotland and ors that principle was challenged on the grounds that it would breach rights to privacy. The court had to consider whether in the circumstances the police officers had a reasonable expectation that the messages they exchanged between each other on WhatsApp would remain private.
During an investigation concerning allegations of sexual offences, abusive WhatsApp messages were found on a police officer’s phone. These had all been sent to other officers. Their content was described as “blatantly sexist and degrading, racist, anti-Semitic, homophobic, mocking of disability” and showing a “flagrant disregard for police procedures by posting crime scene photos of current investigations”. The officers challenged whether they could be used in misconduct proceedings.
The officers’ challenge was dismissed. Whilst normally there would be a reasonable expectation that the content of private messages exchanged via WhatsApp would remain private. However, it had to be taken into account that these messages had been sent and received by police officers who were required to comply with specific professional standards whether or not they were at work. Their legitimate expectation of privacy was limited when compared to an ‘ordinary member of the public’.