Employment Solicitor Chris Dobbs outlines some key considerations for employers to try and limit the risk of hybrid working disputes and claims
WhatsApp and the right to privacy at work
As employment law specialists, issues surrounding social media and personal or private communications of employees are becoming increasingly common.
In this article, he examines a recent case that looked at WhatsApp; and whether employers can monitor WhatsApp messages.
Can an employer read employees' WhatsApp messages?
An individual’s right to privacy stems from Article 8 of European Convention on Human Rights.
This is not a piece of EU legislation but is instead an international treaty of which there are 47 signatories. Incorporated into UK law by the Human Rights Act, this says that everyone has the right to respect for private and family life, their home and correspondence.
However, it is what is known as a qualified right: there are situations where the law may allow interference with this right. One such example came up in the BC case.
What can trump an employee’s right to privacy?
Public authorities are not allowed to interfere with that except in exceptional circumstances such as national security, public safety or the prevention of crime. Employment tribunals, like all courts, must construe employment law in a way which is compatible with the ECHR. But how far does this right to privacy go, and what kind of things can trump it?
One recent case (BC V Chief Constable of the Police Service of Scotland) demonstrates situations where the demands of an employer could be sufficient to supersede the privacy rights of an employee.
BC V Chief Constable of the Police Service of Scotland
In BC V Chief Constable of the Police Service of Scotland, police officers signed up to a code of professional conduct. The code applied both on and off duty due to the public nature of their jobs.
WhatsApp: Code of professional conduct and the right to privacy
The code said officers must not behave in a way which interferes with the ‘impartial discharge’ of their duties or gives the impression of partiality. The Police Service of Scotland (PSS) conducted an investigation into sexual offences within the police force.
As part of the investigation, private WhatsApp messages from groups chats between officers were found, containing racist, sexist, anti-Semitic, homophobic and disablist comments, as well as photos of crimes scenes in breach of police procedures.
The PSS brought misconduct charges against numerous officers. The officers retaliated with a claim alleging that the misconduct proceedings based on private WhatsApps breached their right to privacy.
You can read Paul Burton's article on Race Discrimination through Social Media platforms here.
Can WhatsApp messages be used in disciplinary proceedings?
The Inner House of the Court of Session (a Scottish appeal court) found that there was no reasonable expectation of privacy for police officers in relation to the private messages.
They were holders of public office and had signed up to certain restrictions on their private life. In addition, all the officers involved were under a contractual duty to report the behaviour of colleagues whose behaviour had fallen short of the code of conduct.
When can WhatsApp messages be used in a disciplinary process?
It is relevant here that the messages were uncovered as part of an ongoing criminal investigation first. There is also, as the Court pointed out, the fact that police officers are public officials who perform a public duty and therefore there is a public interest need to regulate them effectively. This, the Court felt, was sufficient to restrict their Article 8 rights.
From an employment perspective, this is broadly in line with tribunal cases which have found that there is no expectation or privacy in relation to comments made on social media or in work-related emails. However, these cases have often involved matters which can show a clear link to the workplace and a degree of choice in the part of the employee to make their content available in public.
Monitoring of employees
Personally, I have concerns about the idea that finding evidence of wrongdoing can justify a potentially unlawful intrusion to find that evidence in the first place. In this case, the evidence was obtained as part of the criminal investigation and I believe the nature of a police officer’s duty to cooperate in a lawful investigation may well distinguish these particular facts from an equivalent case in the private sector or, indeed, other public sector role.
We touched on the monitoring of employees when working at home in another recent post that can be read here.
Public interest and Article 8 Privacy Rights
There was a clear public interest in maintaining a properly regulated police force in which the public could have confidence. That objective was enough to justify the restriction on the officers’ Article 8 privacy rights.
WhatsApp and Disciplinary Procedures: A specialist Employment & HR Solicitors' View
Several recent court and tribunal cases have indicated that employees do not always have a reasonable expectation of privacy when it comes to social media content. Generally, this is where comments are posted on publicly accessible forums and the employer, or a member of the public, could see them without any invasive search.
This case goes a step further and holds that the regulation of public office roles may be sufficient to justify an intrusion in to private and personal correspondence. Most private sector employers are not going to be able to rely on public interest to justify breaching their employees’ human rights but it is a reminder for everyone to be careful about how, when and where they share content.
Specialist Employment Solicitors in Bournemouth, Poole, Christchurch and The New Forest
Our specialist employment law & HR team have advised many businesses and employees on such matters.
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