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. For a summary claim to be granted, it must be shown that the other side has no real prospect of defending the claim. 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.

Decision

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.

Key takeaways

For employers, a key point here is that private information downloaded to a work laptop may retain its private character. This is a common scenario for many people and private information may frequently be discovered on an employee's work devices when they leave a job. Even if there are legal proceedings going on at the time the employer discovers the messages, retaining or using the information could be unlawful. The safest course of action may be to notify the employee immediately and return the information to them (along with deleting it from the employer's systems). 

In some circumstances, however, it may be legitimate for employers to retain or use information left behind by employees, if the information does not attract a reasonable expectation of privacy. The courts will take all circumstances into account when considering whether there was a reasonable expectation of privacy. Where this is uncertain, the courts will consider whether disclosure of the information about the individual concerned would give substantial offence to a person of ordinary sensibilities placed in similar circumstances to that individual. 

Moreover, for there to be a misuse of private information, there must be a positive action by the defendant using the information to "interfere" with the claimant in the first place. If there is no positive action interfering with the claimant, there is no misuse of private information. Unfortunately for employers, using private messages to defend a tribunal claim would be such a positive act. Data breaches are not a positive action in this context, though unintentional use by an employer can in some circumstances trigger a claim for misuse of private information. 

An employer may well feel it is unfair that they cannot make use of information that supports their version of events (or impacts a claimant's credibility). One way to address this is to rely on disclosure. There is a requirement for both parties in a legal dispute in England to disclose documents that are relevant to the other side and to the court. Where relevant documents are discovered and returned to a claimant, an application could be made for their voluntary disclosure, failing which an order applied for. The equivalent rules governing disclosure in Scotland could be used to obtain relevant documents. 

Whilst there may be an initial presumption that personal messages will be private, an employer might be able to overturn that presumption if it has a clearly communicated policy that states that employees must not use work devices for personal use and warns employees that their communications may be monitored. The situation would also be different if the messages contained a mixture of work and personal matters.