Private WhatsApp messages could be used in disciplinary proceedings

BC and others v Chief Constable of the Police Service of Scotland [2019] CSIH 61

Why care?

The boundary between work and home life, particularly when homeworking has become the norm, is constantly being eroded. As the case below illustrates, what colleagues share as part of a group chat outside work is not necessarily private. The messages shared by work colleagues on WhatsApp can end up being used as evidence in litigation, as illustrated by recent cases involving planned team moves.

The case

In this case the Inner House of the Court of Session held that the Police Service of Scotland was entitled to rely on the content of private WhatsApp messages between a group of police officers when these came to light during a police investigation not related to work. The police officer being investigated argued that the Police Service should not be entitled to rely on these messages in internal disciplinary proceedings because they took place outside work and were private. He alleged violation of his article 8 rights. The messages contained racist, sexist and homophobic content.

The court held that the police officer could have no reasonable expectation of privacy in these communications, given their nature and his duty to observe professional standards at all times, along with his duty to refrain from conduct which conflicted with the impartial discharge of his duties.

What to take away

The relevance of this case is not confined to public sector employers. For example, employees in the financial sector who have to meet the ‘fit and proper’ test may find what they do in their private lives has a direct bearing on their continued employment. Even employees outside regulated sectors may find themselves being scrutinised for what they do in private, as certain cases involving postings on Facebook have illustrated.

Technology makes communication easier and freer, yet it also presents risk in the workplace. With employees being encouraged to form support chat groups during the time of COVID, employers need to think about reviewing their social media policies, reminding employees of the risks of discrimination, cyberbullying and unintended harm that can occur from ‘offline’ conversations. Depending on the nature of the business and the role, they may also wish to remind employees that their expectation of privacy may not be guaranteed if unacceptable matters in such chats come to their attention.