In a recent case between FKJ (The Claimant) and RVT (Defendant), the case highlighted that parties need to consider how they approach obtaining evidence in support of their case and also how they handled the information once it was obtained, as without proper care/advice, it is possible to make an already litigious situation worse.
The claimant was a solicitor that qualified in 2017 and commenced work for the Defendants in that same year.
On 21 December 2017, the Claimant was dismissed by the Defendants for falsifying a timesheet. The Claimant commenced employment tribunal proceedings against the Defendants alleging various causes of action but all revolving around the same thing – an accusation of inappropriate remarks and sexual touching.
The Claimant lost the employment tribunal claim. However, during the course of the Employment Tribunal, the Defendants deployed some 80,000 of the Claimant’s WhatsApp messages, the majority of which were between the Claimant and her husband (some of which were of the most intimate nature) and the Claimant and her best friend.
The defendant accessed the claimants WhatsApp account via her work laptop and downloaded 18,000 personal and sexually explicit messages between her, her boyfriend and her best friend which cast doubt on her credibility .
Despite losing the Employment Tribunal, the claimant brought a High Court claim saying her WhatsApp messages should not have been accessed as they were clearly private, and the firm tried to have this struck out and failed.
The High Court said that it was obvious that they were communications in respect of which the claimant had a reasonable expectation of privacy, and that the defendant should have returned them to the claimant or her solicitor, who then had disclosure obligation.
Therefore, it’s really important that you seek professional advice before doing something like this, and also consider how you are going to keep this information safe once you have it. A carefully worded social media Policy is also key to ensure that WhatsApp messages between work colleagues can be accessed if there is suspicion that also explains how employees will be informed about the need to access their information and how it will be stored.
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