When can an employer rely on ‘private’ WhatsApp messages in the context of disciplining an employee?

A recent Court decision has helped provide some clarity on the right to privacy and when interactions on WhatsApp* may be admitted into misconduct proceedings. This case does seem to have struck the right balance.

*The case distinguished WhatsApp from other social media platforms viewing it as more private than others.

The case

B C and Others against Chief Constable Police Service of Scotland and Others [2019] ScotCS CSOH_48

In June this year, the Court was faced with deciding whether WhatsApp messages exchanged between police officers can be disclosed in the context of misconduct proceedings. In terms of when a person may reasonably expect a conversation to remain private, the Court distinguished between the ‘ordinary member of the public’ and those who are required to comply with specific professional standards whether or not they are at work, such as police officers.

The facts

Whilst investigating internal allegations of sexual offences, the Police Service of Scotland (PSS) reviewed a suspect police officer’s phone and found messages sent via WhatsApp on two separate groups, of which other officers were also members. The PSS described the content of the messages as “blatantly sexist and degrading, racist, anti-Semitic, homophobic, mocking of disability” and showing a “flagrant disregard for police procedures by posting crime scene photos of current investigations”.

Although not used in the criminal investigation, the messages were passed on to the PSS’ professional standards department for them to review in the context of disciplining the officers.

The officers claimed that the use of these messages in the context of the misconduct proceedings was unlawful and infringed their right to privacy. The Court disagreed.

Right to privacy?

In England, there is an established legal right to privacy In this case for the first time, the Court stated that there is also a right to privacy in Scotland. It said that privacy is a “core value… which is inherent in a democratic and civilised state”.

Reasonable expectation of privacy?

Here, the Court distinguished between the ‘ordinary member of the public’ and those who are held to professional standards whether on or off duty, such as police officers.

1. The ‘ordinary member of the public’
may reasonably expect that a conversation which takes place within a WhatsApp group will remain private, and so the right to privacy is engaged. The content of the messages, no matter how abhorrent, does not affect this expectation.

1.Those to whom professional standards apply
have a limited right to privacy which is in line with the standards they adhere to. If they breach the standards, they have no reasonable expectation of privacy.

Officers swear an oath to behave in accordance with the Standards of Professional Behaviour (‘the Standards’). These apply whether the officers are on or off duty and refer to honesty and integrity, equality and diversity and reporting improper conduct, amongst other things. Officers are also under a duty to abstain from acting in a way which is likely to interfere with the impartial discharge of their duties, or which may give that impression to the public.

The content of conversations is relevant here, as this will inform whether there is a reasonable expectation of privacy or not. As all officers have a duty to report improper conduct, they cannot reasonably expect such inappropriate conversations to remain private. Therefore in relation to these messages, the officers’ right to privacy was not engaged.

In making this distinction, the Court placed a great deal of emphasis on the existence of the Standards. As their underlying purpose is to maintain the public’s confidence in the police it makes sense that they should be held to account for their behaviour it if falls below what is expected.

Legal basis for disclosure?

The officers argued that their employer was not permitted to transfer the messages from the separate criminal proceedings to the employer’s disciplinary team as there was no legal basis justifying this.

The Court held the transfer was permissible as it was in the public interest, and done to protect the public. There is a clear public interest in having a properly regulated police force.

What about proportionality?

Even if the officers had a reasonable expectation of privacy, the Court determined that this would have been a proportionate interference with their rights as it was necessary in the interests of public safety and the prevention of disorder or crime (a Human Rights Act issue - Article8(2)).

So what now?

This decision makes sense: it is right that the police (and those held to a higher standard) should be held accountable for these sorts of messages.

This Judgment means that individuals who are the subject of professional standards (including solicitors, doctors and financial service workers) have a limited right to privacy: their WhatsApp messages may be admissible in misconduct proceedings where they act in breach of those standards.

In most other circumstances, messages sent via WhatsApp are caught by the right to privacy and so an employer who wishes to pursue disciplinary action following the discovery of inappropriate WhatsApp messages will risk infringing that employee’s right. They may only admit such messages if one of the exceptions stated in Article 8(2) is met such that the individual’s right to privacy is outweighed.

All employers should ensure that they have clear policies on the use of social media identifying what is and is not acceptable behaviour on these platforms and what the consequences are for non-compliance.

For ‘ordinary’ employees who are using their work phones to send inappropriate messages, this is a bit of a grey area. Arguably the employee cannot reasonably expect the messages to remain private. There is also the issue of who owns the data. Where the employer has paid for the phone and the contract it could be said that they own everything on the phone, potentially including the WhatsApp messages.

These cases will be fact specific and legal advice should be sought if this sort of issue arises. All the more reason for a clear social media policy to support you!