With the seemingly ever-increasing use of social media, many employers might find themselves wondering about the status of private messages when a workplace dispute arises. A recent High Court case, FKJ v. RVT and others, looked at this issue and suggests the use of caution.

The Claimant was a solicitor who was dismissed for misconduct (falsifying a timesheet). She later began a claim against her employer in the Employment Tribunal for sex discrimination (alleging the managing partner had sexually harassed her), unfair dismissal and wrongful dismissal. In the Tribunal proceedings, her employer submitted 18,000 of the Claimant’s own WhatsApp messages as evidence. The messages undermined the Claimant’s credibility as they indicated some of the conduct she alleged was consensual or did not occur at all. As a result, the Claimant lost her tribunal claims.

The Claimant then brought a claim for misuse of private information in the High Court, alleging that her employer had acquired the WhatsApp messages through hacking and that she had a reasonable expectation of privacy surrounding the messages as they held information on her professional, social and private life.

The employer argued that the claim for misuse of private information should be struck out as an abuse of process and brought a summary counterclaim for malicious prosecution. The employer denied the hacking accusation, saying that some of the messages had been found on the Claimant’s work laptop when it was returned to them, and others had been received via anonymous letters.

The High Court rejected the strike out application and held that the claim for misuse of private information could proceed. The Judge concluded that there could be an expectation of privacy in the messages, due to their obviously private nature. The Judge considered the fact that only some of the messages were deployed in the Tribunal claim and that the employer had not given evidence or authority for their proposition that private information downloaded to a work laptop necessarily loses its private character.

The Judge stated that the Claimant’s decision not to seek exclusion of the WhatsApp messages from evidence presented in the Tribunal claim was not fatal to her High Court case, that the Tribunal would likely have admitted the evidence anyway and that, even if the Claimant had challenged its admissibility, a ruling either way would not have prevented her from pursuing a claim in the High Court for misuse of private information. The Tribunal also had no jurisdiction to consider a misuse of private information or hacking claim and the Claimant specifically reserved her misuse of private information claim at the Tribunal and informed the employer of that at the time.

Source: Lexology