Can an employee claim that messages/emails/information are private when stored on an employer’s device? A recent High Court case of FKJ V RVT and others [2023] EWHC 3 (KB) offered some guidance on this thorny issue.

The judge’s comments were made in the refusal of a strike-out application made by the defendant (the employer) in a claim for misuse of private information.

It was a complicated case with various twists, but the essential facts are as follows: the claimant brought sex discrimination, unfair dismissal and wrongful dismissal claims in an employment tribunal. She lost those claims but noted that a significant component of the evidence against her consisted of her own WhatsApp messages, which were downloaded to her work laptop via the computer-based WhatsApp Web software.

The claimant was by any measurement a 'heavy user' of WhatsApp messages. Her ex-employer had collected and relied upon some 18,000 messages in their defence in the employment tribunal. These messages totalled some 900 pages in the tribunal bundle. Though some of the messages undermined her credibility and were relevant to specific allegations, many of the messages were personal in nature to her partner and best female friend about her professional, social and private life.

Not surprisingly, the claimant was not impressed with having the details of her private life set out for all to see in a tribunal bundle. Neither was she impressed by the fact that her loss at the tribunal was in no small part due to the contents of these messages. So, she subsequently brought a claim for misuse of private information against the managing partner of her employer (this being a law firm – such partner being the individual who had collected these WhatsApp messages from her work device during litigation).

The judge (Master Davison), dismissing a strike-out application by the defendant, made important comments on the privacy of these messages. The summary of the relevant parts of the judgment is that:

• The claimant had a reasonable expectation of privacy in these WhatsApp messages
• No explanation or authority had been offered for the defendant’s proposition that the fact the private information was downloaded to a work laptop (a very common scenario) thereby causes it to lose its private character
• The bulk of the messages found had no relevance to the employment tribunal proceedings and, given their obvious privacy and the absence at that time of any proceedings to which the messages might be relevant, the defendant would have come under an immediate duty to notify the claimant and deliver up the messages to her once found, which he didn’t do
• The correct course of action would have been to return all WhatsApp message materials to the claimant’s solicitors once found and for the claimant’s solicitors to then disclose what was relevant in respect of these messages

What do we learn?
In a world where working from home is the new normal, and perhaps therefore where the lines between personal and professional use of work devices are blurred, these comments can give some important lessons for employers in managing the personal information of past and present employees.

• Do not presume that just because personal information is on a work device, it loses its private character – it is more nuanced than that. 
• An employer may use such private information but only when relevant and proportionate. The judge in this case noted that only 40 of the thousands of messages were relevant and thus were disclosable. Private information stored on work devices should not be used to 'sling mud' at employees. A WhatsApp message stored on a work device in which an employee brags to a friend about hitting a colleague will not hide behind the cloak of privacy in a subsequent investigation and disciplinary hearing. Messages sent to his wife and mother which are a little harsh and aggressive in tone, would, if we follow the judge’s comments, most likely have an expectation of privacy.
• Review your staff’s expectations of privacy; consider what is outlined in your IT, social media and/or any other relevant policy governing the use of work devices for personal messages. Is your policy to take a strict approach against such use or do you allow 'reasonable use'? Do you note that whilst reasonable use is acceptable, and privacy will be respected, messages still remain the property of the organisation? Ensure that the policy then links with your disciplinary policy and procedure so that this can be triggered if there are any breaches.

For advice in relation to any specific circumstances, or for assistance in drafting or reviewing any relevant policies, please do not hesitate to get in touch.