Limitations to Employer Use of Employee WhatsApp Messages in Litigation

By Louise O’Byrne, Partner, Employment, and Colin Rooney, Partner, Technology and Innovation, Arthur Cox. LLP

In a recent judgment, FKJ v RVT and others [2023] EWHC 3 the English High Court refused to strike out a misuse of private information (‘MPI’) claim taken by a former employee against their employer. The claim related to the use of the employee’s personal WhatsApp messages by her employer in defending a claim that she had taken against them that she had been subjected to sexual harassment over the course of her employment and was unfairly dismissed. The employer produced and relied on an enormous bundle of her private WhatsApp messages to undermine the employee’s credibility. The employer had retained 18,000 WhatsApp messages containing day-to-day information about multiple aspects of the employee’s life as well as intimate messages to her partner. The employee’s claim before the Employment Tribunal was ultimately unsuccessful but she initiated a MPI claim in relation to the employer’s possession of her private messages.

In the MPI claim, the employee questioned the provenance of the WhatsApp messages, which included complete chat histories with her partner and best friend. The message log spanned over several years of her employment and extended to chats following termination of her employment. The employee alleged that the employer had hacked into WhatsApp Web and obtained access to all her WhatsApp messages. The employer defended its possession and use of the messages on the basis that one portion had been found as downloads on the employee’s work laptop after she left the firm and another portion had been provided to the firm by an ‘anonymous source’.

The MPI claim, the Court indicated, was unlikely to face significant problems if it moved to full hearing. Key factors underpinning this provisional conclusion were the absence of an explanation from the employer as to how the WhatsApp messages would lose their private character by being downloaded to a work laptop and the absence of a justification for the retention or use of the messages particularly in light of their limited probative value (only 20 of 18,000 messages were deemed to be strictly probative of an issue in the employment claim). In particular, the judgment questioned the retention of the messages and failure to notify the employee when they were found, given their obviously private character (and the absence of any proceedings in issue at the time). The Court characterised the employer’s actions as a “very serious breach of her private information” and the fact that the employment tribunal hearing was held in public escalated the gravity of the breach. While no award of damages has been made at the date of writing, the Court indicated that damages would factor in the claimant’s loss of control of her private information and the distress caused by the employer’s use and dissemination of it.

While data protection was not considered in the judgment, the question marks raised over the retention and use of the messages could point to issues for the employer in identifying an appropriate legal basis for its processing activities, which include the review, use in litigation and retention of the entirety of the WhatsApp messages in its possession.

The Court emphasised that private information does not lose its character merely because it is downloaded to a work laptop. The judgment draws a clear line between company information and private information even where both are held on employer’s electronic devices. It also highlights restrictions on subsequent use of private information and the potential unintended consequences for employers in doing so, such as defending an MPI claim. The judgment provides a timely reminder for employers on the need for caution when seeking to rely on or use an employee’s private information, particularly in the context of a dispute.

About the authors

Louise O’Byrne is a Partner in the Employment Law group. Louise provides commercial and solutions focussed advice to a wide range of clients to include clients in the financial services, manufacturing, retail, technology, energy, pharmaceutical and healthcare sectors. Louise advises and represents employers in all types of employment disputes, including unfair dismissal, employment injunctions, occupational stress and bullying claims, transfer of undertakings, fixed-term and part-time work and discrimination claims. She regularly appears for clients in the Workplace Relations Commission, the Circuit Court and the High Court. Louise has particular expertise in advising on the employment aspects of corporate transactions and outsourcings.

Colin Rooney is a Partner in the Technology and Innovation Group. Colin has extensive experience advising domestic and international clients on information management issues, with his data protection and information technology practice covering all aspects of data processing across all industry sectors. His practice also has a strong emphasis on commercial IT agreements. Colin is a frequent speaker on data protection and freedom of information topics, including at the Data Protection Leadership Forum, which the Group launched in 2019. He is also a frequent contributor to various legal journals on the above-mentioned topics.