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Do employees have a right to privacy in relation to WhatsApp messages (regardless of how offensive the content)?

View profile for Emily Kearsey
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Discovering that employees have made unacceptable comments on social media can be a particularly thorny issue to deal with. This problem has been well publicised recently; remember broadcaster Danny Baker, Emmerdale star Shila Iqbal, and Rugby Union player Israel Folau who were all let go for having made offensive tweets? The situation becomes even more complex when dealing with unacceptable content posted in private circles on social media, such as WhatsApp messages. Where content is posted in a private forum, employers need to balance their own interest in protecting the business and reprimanding the employee against the employee’s right to privacy and also their right to be treated fairly and reasonably.

The Court of Session in Scotland recently explored these issues. In BC and others v Chief Constable Police Service of Scotland and others a police service discovered WhatsApp messages between a group of its officers, which were sexist, racist, anti-Semitic, homophobic, mocking of disability and which also demonstrated a ‘flagrant disregard’ for police procedures by posting crime scene photos of current investigations. The police service brought disciplinary proceedings against a number of officers, who then complained that the police service had breached their right to privacy by relying on these private messages.

The court accepted that ordinary members of the public would have a reasonable expectation of privacy in WhatsApp messages. However, it decided that the position of a police officer was different, given that whether on or off duty they are always subject to specific standards of behaviour set out in professional rules which limit the right to privacy. The court also found that the interference with the police officers’ right to privacy was justified on the grounds of public safety, given that maintaining public confidence is essential for successful policing.

While this is a first instance Scottish decision, it is one of the first judgments in the UK to look at the right to privacy in this context and serves as helpful guidance for employers. Whilst care should always be taken when relying on private messages as evidence of misconduct, this case has demonstrated that employees who are subject to professional conduct rules (such as the police force, lawyers, or doctors for example), are less likely to have a reasonable expectation of privacy. However, various other factors are also likely to be relevant, such as the manner in which the messages have come to the employers attention (e.g. were they obtained covertly or shown to the employer by an employee in the WhatsApp group), or whether the employer has clear policies in place setting out its expectations in relation to the use of social media.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.