Workplace Privacy: Can an employer refer to an employee’s private WhatsApp messages in a disciplinary process?

Author: Michael McCartney, Mike Tremeer, Taj Rehal

This was a question referred to the European Court of Human Rights in the recent case of Garamukanwa v United Kingdom.  Coincidentally, much the same question was put to the Scottish Court of Session earlier this year in BC and others v Chief Constable Police Service of Scotland and others.  Both cases together provide a useful indication of the courts’ approach and demonstrate how the principle of workplace privacy will be implemented in practice.

The Scottish Court of Session was addressing concerns raised against a serving police officer. It held that individuals who are subject to professional standards (such as police officers, accountants, doctors, and lawyers) should have no reasonable expectation of privacy over their WhatsApp messages in circumstances where they breach those standards.  This means employers are at liberty to refer to any relevant private messages during a disciplinary process.

Expanding on this approach, the European Court of Human Rights decided that all employees (not only professionals) can have no reasonable expectation of privacy if they:

·         had previously received a warning from their employer regarding inappropriate private messaging; and

·         had raised no objection to the use of such messages by their employer at the time.

It is clear that the courts are prepared to adopt a pragmatic approach.  We take a closer look at both cases and their implications for employers.

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