GDPR Ruling on WhatsApp Messages

Posted on: 15/06/2023

Category: For you, For your business

A recent case involved an employee who brought a claim against her former employer about its alleged misuse of her private WhatsApp messages on her phone. The employee had been dismissed by the employer for misconduct.

The employer had obtained 18,000 of the former employee’s WhatsApp messages and some of these were introduced in evidence against her in Tribunal proceedings. The employee claimed that they were obtained without her consent and the employer claimed that they were found on her work laptop after her dismissal or alternatively received anonymously.

The former employer tried to strike out the employee’s claim. The court refused the employer’s application on the basis that the messages included details about the employee’s health and sex life and other aspects of her private life as well as her professional life. It was felt therefore that the employee should have had a reasonable expectation of privacy in relation to those messages.

In finding for the employee, the judge commented that even if the messages were on the work laptop, there was not an argument forthcoming from the employer to say that they lost their private nature simply as a result of that; only approximately 40 of the messages were used in the Employment Tribunal claim; and according to the employer, the messages were obtained or received before the Employment Tribunal claim and yet the former employer did not notify the employee immediately and give the messages to her. The judge also suggested that even if proceedings had been commenced by the time that the messages became available to the former employer, because they were so clearly private in context, the same obligation may still have rested upon the former employer.