Are messages shared amongst colleagues really private?

During the course of lockdown, many of us will have switched to social media as a preferred method of communication with colleagues to avoid email fatigue. Working from home where possible in line with current government guidance will no doubt have accentuated this trend.

Most people will not have stopped to consider if the content shared on platforms such as WhatsApp is truly private. This will not raise any real concerns for the majority. Chat will likely relate to recent news, birthday wishes or some other light-hearted banter – so called "water cooler chat" – but in virtual form. 

However, what happens when the banter goes too far? Or when the content of those messages takes a darker turn? Are employees entitled to a right to privacy? Can employers rely on messages intended to be private to bring disciplinary proceedings against the participants in such forums?

What do the courts say?

In our July 2019 newsletter, we reported on the decision in a case about the privacy of group chat messages shared amongst Police Service of Scotland colleagues. The messages were described as "blatantly sexist and degrading, racist, anti-Semitic, homophobic, mocking of disability". They were discovered during an unconnected investigation and led to internal misconduct charges being brought against a number of the officers involved. The officers took their employer to court, arguing that misconduct proceedings infringed their common law right to privacy, or were an interference with their right to privacy under Article 8 of the European Convention on Human Rights (ECHR). 

The court started from the position that everyone has the right to respect for their private life, including their correspondence. The officers had a reasonable expectation of privacy, therefore the WhatsApp messages were private. It went on to say that their messages were also protected by Article 8 ECHR. However, it then qualified both these rights. 

The fact that the employees were police officers meant that they were subject to the Standards of Professional Behaviour and the Police Service of Scotland (Conduct) Regulations 2014. This meant that they were under a higher standard of conduct than members of the public or those in unregulated roles. The nature of the content raised public safety concerns and, in short, this meant they did not benefit to the same extent from either right to privacy. The court concluded that the police authority was entitled to use the messages in disciplinary proceedings.

Some of the officers appealed against the decision but Scotland's highest civil court dismissed their appeal. 

It is important to remember that the outcome of this case is specific to the arguments presented and each case will turn on its own facts. That said, we can glean some general principles from the court's judgment which have wider implications for those in regulated professions, such as the legal or financial services sectors. 

Are electronic messages protected?

This case makes it clear that electronic correspondence is not only within the area of private life protected by Article 8 but it is also capable of being protected within the context of an individual’s professional life. 

How can employers assess what content is to be treated as private?

The court confirmed that there is an objective test: was there a reasonable expectation of privacy in light of all of the circumstances? Relevant factors for employers to consider are: 

• the nature of the activity and of the content of the material shared (e.g. is it illegal?);
• the attributes or status of the parties involved (e.g. do they hold public office?);
• where was the information shared (e.g. publicly?);
• how and why the material came to light (e.g. was it obtained improperly or covertly?); and
• whether it would be fair to use such content in disciplinary proceedings.

The court held that, while police officers are entitled to a private life and that even unpleasant messages are usually protected by Article 8, the fact that they are holders of public office and subject to a regulatory framework means that they have accepted certain restrictions. The police force needs to be properly regulated. This is important for retaining public confidence and for the impartial and proper discharge of police duties. In this case, there was no question of covert surveillance and the officers could have had no reasonable expectation of privacy in respect of the messages in question. There was no interference with their rights under Article 8(1) ECHR.

What other things should employers think about?

Another consideration is whether there is a clear legal basis for use of the messages. In this case, there was a very clear, specific public interest. Generally, if employers seek to rely on private messages, they should be able to set out clearly a credible legal basis for doing so. Employers must also carefully carry out reasonable investigations that do not breach the duty of mutual trust and confidence. If information is obtained by chance in the course of a disciplinary or grievance, or is not otherwise obtained unlawfully, it is less likely to raise privacy concerns. 

A final factor to think about is whether the use of messages is necessary and proportionate. Here the disclosure was necessary in the interests of public safety.

So what is the bottom line?

We are increasingly seeing social media forming part of tribunal evidence. Whether an employee can reasonably expect their workplace communications will remain private will depend on the particular circumstances. Those not holding public office have a wider scope of protection. However, employees regulated by a professional body with strict codes of conduct should take note – your rights may be more restricted. Your employer may well be entitled to use the content you share in any disciplinary proceedings, even if you intend it to be private.