Misuse of Private Information in Employment Tribunal Proceedings
An employee is pursuing High Court proceedings against her former employer, after it accessed thousands of her private WhatsApp messages to use in its defence of Employment Tribunal proceedings.
Former Employer Obtained Access to Private Messages
In the case of FKJ v RVT, the Claimant (FKJ) brought Employment Tribunal proceedings against her former employer (RVT) following her dismissal for misconduct.
As part of its defence to the Tribunal proceedings, RVT had somehow obtained access to some 18,000 private WhatsApp messages sent by FKJ to her partner and her friend. RVT claimed that the messages had either been found on the employee's work laptop, or that they had been delivered anonymously in hard copy. FKJ argued that RVT had obtained the messages by hacking into her WhatsApp account. Importantly, the messages were obviously private messages about FKJ's personal and professional life.
Following the Tribunal proceedings, FKJ brought a High Court claim for misuse of private information relating to RVT's use of her WhatsApp messages. RVT applied to have the claim struck out.
High Court Allowed Claim to Proceed
The High Court rejected the strike out application and allowed the claim to proceed. It held that it could not seriously be argued that FKJ would not have had a reasonable expectation of privacy in relation to the messages. The High Court considered the following points to be particularly relevant:
- RVT had failed to offer a convincing explanation for how the messages came into its possession
- Only 40 of the 18,000 messages were used in the Tribunal claim
- The correct course of action would have been to return the messages to FKJ (or her solicitors), who would have had disclosure obligations insofar as any of the messages were relevant to the Tribunal proceedings.
What Can Employers Learn From This Decision?
This case is unusual on its facts, but in an employment context nevertheless provides a useful reminder of where the line is drawn between private information and information that is relevant to legal proceedings, and therefore disclosable in evidence. In this case, it is unclear how RVT accessed the disputed messages. However the decision provides clear guidance on how employers should respond in a similar position, both when Tribunal proceedings are ongoing and when they are not.
