Your average employee and their manager are merrily commenting to each other and their colleagues using apps such as ‘WhatsApp’, because such applications are an easy way to communicate, saving  time compared to picking up the phone to each other, interrupting each other or sending a more formal email. However, to your average employment lawyer and HR professional, it can feel like the lid coming off Pandora’s box.

You are probably all aware of recent examples of harassment where employers have got into trouble because of the content of messages on Apps (Met Police being an example that hit the news). Today I was reading about an example in ‘People Management’ where a misogynistic older male had sent a female colleague nearly 200 messages that were wholly inappropriate for the workplace including memes, jokes that the sender probably would put down as “banter” and so on. In that particular case, the employee was awarded £19,000. It is for good reason that we are all triggered with concerns as we are asked to delve into this area but that is not the focus of this thought piece. I wanted to focus on the extent to which the employer is able to access ‘WhatsApp’ messages, for example, if they are stored on a company device.

This largely depends on what you have set down in writing to the employee. An employee will have a reasonable expectation of privacy in their working life, which will include their office space which also now includes their “device space”. So, if the employee is having a chat with their friend, for example, or their partner, they are likely to have a legitimate expectation that that conversation is private in just the same way as in the Halford case years ago, where the employer got into trouble for listening to a conversation with a trade union representative on the telephone. This is why we have to draw to an employee’s attention, what monitoring takes place and you will find statements in policies and in contracts managing that employee’s expectation, so setting out when, for example, a manager is likely to be reviewing the content of their laptop or their device, such as if they go on holiday or if they are off sick. Just because a non-work related matter is being stored on a work laptop or a work phone or iPad, doesn’t mean it loses the quality of privacy in the sense of management of expectations.

You could go further these days and spell out that if employees use things like Facebook or WhatsApp on work equipment, that they should not have any expectation of that communication remaining private. For example, if a manager does have to access the device or after the employee leaves, if they have left those applications open and we then discover something, we are able to use that evidence………

Having said all that, my experience of the Employment Tribunal system is that they do have discretion over admissibility of evidence. Whilst you may have technical legal arguments as to why something has been obtained in an inadmissible way, the Tribunals as opposed to the Courts in the UK, tend to be much more relaxed and are just interested to see the content of the messages and rule on how they affect the legal questions before it. From an employee perspective, it can be deeply frustrating to feel violated in terms of your privacy rights and then find that arguments along those lines don’t get you terribly far and the Tribunal’s focus remains on the substantive claims you are bringing.

I have also recently seen the first examples of emojis causing significant offence and a harassment and victimisation claim but in this particular instance it was the crying with laugher emoji that was the issue. This illustrated that the combination of the emoji with the words used alongside it turn what might be relatively innocuous into the recipient being able to argue that it was offensive. Make sure you have updated your policies to include offence being caused by emojis………..

Refreshing Law Ltd
August 2023