UK: right to privacy in relation to personal emails and WhatsApp messages

The European Court of Human Rights in Garamukanwa v United Kingdom has confirmed that the right to privacy can theoretically apply in relation to communications sent from a workplace email address, or which touch on both professional and private matters. However, in this case, the employee did not have a reasonable expectation of privacy in private communications sent to a work colleague, which had been discovered as part of a police investigation into allegations of harassment and passed to the employer for use in disciplinary proceedings. At the time of the communications, the employer had already informed the claimant of his colleague's complaint and that his conduct was unacceptable, and therefore he could not have reasonably expected that his subsequent communications linked to the allegations would remain private. The employer was entitled to rely on these communications to justify dismissal for gross misconduct. The case highlights the importance of putting employees on notice of this type of allegation at an early stage.

More recently, the Outer House of the Court of Session has decided that, although ordinary members of the public may have a reasonable expectation of privacy when sending messages to a WhatsApp group, the position was different for police officers subject to professional standards applicable both on and off duty. In this case police officers sent offensive messages to a WhatsApp group of other officers, all of whom were under a positive obligation to report this type of message, in itself increasing the likelihood of disclosure. Given that officers are expressly required at all times to abstain from any activity likely to interfere with the impartial discharge of duties or giving that impression to the public, their expectation of privacy was limited. The employer was therefore entitled to use the messages (discovered during the course of a separate criminal investigation) as the basis for misconduct proceedings. The ruling suggests that individuals working in regulated industries or professions, where a higher standard of personal conduct is required, may not be entitled to an expectation of privacy in relation to messages sent to a WhatsApp group. (BC v Chief Constable Police Service of Scotland)