Employee Monitoring

7th August 2023

It can be difficult for employers to establish what can be relied upon when looking at disciplining an employee. The two cases below highlight the issues employers must consider when dismissing an employee.

The first case is Ms T Webb v London Underground Ltd. The Claimant was dismissed for posting inflammatory comments about George Floyd and the Black Lives Matter movement in June 2020 on her Facebook account. This was her own personal account, and not affiliated with her employer, however she did list London Underground on her page. Although her posts were private, they found their way into the wider public, and complaints were made to London Underground. This led to her dismissal. As a result she brought claims of unfair dismissal, race discrimination and unlawful deduction from wages.

She was successful in her wages claim, in that she was repaid owed holiday. Her race discrimination claim however was dismissed. Her dismissal was found to be substantively fair, but procedurally flawed. This meant that she was unfairly dismissed, however her conduct (i.e. her Facebook posts) meant that any compensation awarded was reduced by 75%.

Interestingly, the Claimant argued, amongst other things, that London Underground could not rely on her “private” Facebook posts for disciplinary purposes. She claimed that this infringed her right to private life under Article 8 of the European Convention on Human Rights (ECHR)). If correct, then London Underground could not have used her Facebook posts for disciplinary purposes, and therefore she would not have been dismissed.

The Tribunal disagreed with this, and concluded that the Claimant could not have any reasonable expectation of privacy to her post, given that she consistently engaged with other users who were not Facebook friends, and that her actual Facebook friends would often repost her content, something that she was both aware of and encouraged. Also persuasive, was that London Underground had a social media policy that explicitly stated that social media posts were in fact, not private, and warned employees that disciplinary action could follow if an employee’s social media post was circulated and contravened their policies.

This case somewhat conflicts with the case of FKJ v RVT and others [2023] EWHC 3 that was heard in the High Court in January 2023.  The Claimant, a solicitor, was dismissed for misconduct because she falsified time sheets. The Claimant disagreed that this was the reason for her dismissal, and brought claims for unfair dismissal, sex discrimination and wrongful dismissal before an Employment Tribunal. She claimed that she had been sexually harassed by her managing partner and that was the real reason for her dismissal.

During the Tribunal proceedings, her employer disclosed some 18,000 of the Claimants’ WhatsApp messages, which they say had (in the main) been downloaded onto her work laptop. The messages conclusively demonstrated that some of the conduct she complained of had not taken place, and generally undermined her claims. As a result she failed with all of her complaints. The majority of the messages were however, about the Claimant’s personal life, and contained highly sensitive and intimate content.

Although the Claimant did not question the admissibility of these messages during the Tribunal proceedings, she instead brought a claim in the High Court. She made claims of the misuse of private information, alleging that her employer had acquired the WhatsApp messages through hacking and that she had a reasonable expectation of privacy surrounding the messages as they were relating to her private life, albeit admittedly they did concern the allegations she had made against her employer.

In response her employer sought a strike out of this claim, on the basis that the Claimant had no real prospects. This was considered in the High Court, as well as whether an employee can have a reasonable expectation of privacy when such messages are found at work. The strike out failed, as the High Court decided that there could be an expectation of privacy of the messages due to their obvious nature, and it was irrelevant that they were on a work laptop, and then subsequently used in Tribunal proceedings.

So unlike in Webb v London Underground Ltd, where private posts were found to be related to employment, here private messages, discovered on a work laptop have been found not to be sufficiently related to employment. The difference is around reasonable expectation of privacy. In Webb, the Claimant actively put out her information to the wider public. Whereas in FKJ, she sent her WhatsApp messages in private and did not believe they would ever be made public.

Other factors to consider when encountering something like this will be the seriousness of the alleged misconduct, the purpose of the content, if it could be reasonably linked to an employer, and whether mitigating circumstances should be taken into account.

Interestingly the advice from FKJ v RVT appears to be that if you do find private information on company systems, that you have no lawful basis to retain or process, then the safest course of action is to notify the employee immediately and return the information to them (as well as removing it from your systems). This would be the case even if litigation is pending or contemplated. In these circumstances, as both parties are under a duty to disclose any information relevant to proceedings, the relevant information would still be disclosed by the employee, and therefore considered at any later hearing.

Clearly this is a complicated area of law, and next steps are often guided by the facts of the situation. That being said, having systems in place to deal with these situations (especially when an employee is leaving, or there is an expectation of litigation) can help. Also having bespoke policies that deal with work equipment, social media and data protection are absolutely vital as they provide the framework that an employer will rely on in such circumstances.

Get in touch with an Employment advisor today. Please contact Employment law Solicitor James Howarth on 0161 838 8131 or email jameshowarth@kuits.com for more advice.

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