The Question: Can employee expect rights of privacy in relation to private WhatsApp and email messages on work laptop that the employer could use against the employee as evidence of a breach by the employee or defence to employee’s allegations against the employer?
The Answer: If there is no policy permitting the above then the High Court has decided in the case of FKJ v. RVT 2023 that the employee is entitled to a legitimate expectation of privacy due to the communications being private and personal.
The Risk / Threat: The General Data Protection Regulation (GDPR) requires that personal data is obtained, held, and processed fairly and lawfully. Where an employee’s protected personal data is compromised in a data protection breach at work, the employee could be eligible for compensation.
What you need to do: Look to drafting a clear policy on monitoring employee material on company equipment even if it is of a private nature and that the employee agrees to this by signing the policy and where there is no policy in place then when employee private material is discovered, inform the employee of the matter and pass on the private information to the employee, delete all private material from company devices and seek disclosure of the private material as part of any legal proceedings that may arise where it is relevant to the legal proceedings.
If you require any further assistance, please do not hesitate to contact our HR/Legal advice line team at 0116 274 9193.
