In an ideal world, relations between employees and employers would be harmonious.

But as anybody who has worked in human resources (HR) or business management will know, it's never quite as simple as that.

Disputes over everything from workplace behaviour to salary and payment levels are sadly common.

These issues are as old as the hills – but in an increasingly digital world in which many interactions are recorded on messaging or social media tools, the picture becomes a little more complex.

What happens if a disciplinary case hinges on messages that were sent via a messaging service like WhatsApp or something similar?

Before making any major decisions, it's worth getting clued up.

This article will give you an introduction to some of the key things you may want to discuss with an expert.

What does the law say?

First off, it's worth looking into what the law says on the topic.

As with many legal questions faced by HR professionals, there is actually more than one applicable law on this topic.

One of the most recent high profile cases in this regard was "BC and others v Chief Constable Police Service of Scotland and others", which explored how the law might apply in Scotland.

In this case, a number of police officers were hit with accusations that they had posted a host of nasty messages on WhatsApp chat groups.

The messages came to light because of another internal investigation – this time into sexual misconduct.

The group faced a range of charges in front of an internal police commission – although it's worth noting that these charges were not ones of law-breaking.

Some of the defendants, however, decided to mount a fightback – and suggested that their right to privacy under the European Convention on Human Rights was being restricted.

The court quickly became bogged down in a key legal question in many privacy cases: in this particular context, could the defendants have reasonably believed that they deserved to have the right to privacy?

According to the Inner House of the Scottish Court of Session, which is a higher level Court of Appeal, the answer was no.

They told the defendants that there was no right to privacy in this precise circumstance, primarily because they were supposed to be upholding a level of integrity that was set out in a separate, more important law.

Complex legal situation

The above example does come with some regional complexities, though.

It's important to remember that Scotland has its own judicial system.

Scots law has similarities to the law in other parts of the country – but a mix of both modern devolution and historic factors means that the law can easily be different depending on which side of the border you live or operate a business in.

According to experts, the fact that a Scottish court came to this particular conclusion about the issue does not mean England needs to follow suit.

As was seen in various cases relating to Brexit, the only power that a Scottish court's ruling really has over an English one lies in its ability to informally pressure English judges to go the same way.

Similar cases have, of course, come before the English courts in the past – and they came to a similar judgement.

But what many employers and HR professionals were looking for was a more comprehensive set of guidelines that they could use as a baseline for future decisions – and this, sadly, was not there.

And as HR Review has pointed out, the employer's data protection policy could also come into play. If that's not up to date and GDPR-friendly, you could be on shaky ground when bringing a dispute.

An ethical dilemma?

Aside from the legal implications, it's also worth exploring the ethical questions, too.

All professions are different, and the ethical and moral dimensions can and do vary based on the context.

In the Scottish case, the fact that it was police officers who were being scrutinised was highly relevant, as police officers are often quite rightly held to high moral standards, and are expected to set an example to other people.

But in professions where this is not quite so clear cut, employers may want to make a judgement about whether or not there is a good reason to interfere in the correspondence of individuals – and to think too about what the public relations ramifications of that could look like.

While recent cases have shown that courts take a dim view of right to privacy appeals in this context, the overall picture is mixed.

What is important for employers to remember is that the law does hinge in large part on the contextual facts at play – and this, unfortunately, means that a clear cut answer may not always be available right away.

Like what you read?

Join 5,494 business owners and HR practitioners keeping 'in the know' with the latest HR & Employment Law developments.

  • Sent every Friday
  • Features the latest HR news 
  • Usually under 5-minutes read time
  • Free, forever
  • <0.42% unsubscribe

About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

Comments