Can Whats App be used in disciplinary proceedings?

A criminal investigation was being conducted into alleged sexual offences. A detective found messages sent via WhatsApp on a phone belonging to another police officer which included a photograph of a female suspect in a cell. The messages had been sent to two chat groups between police officers; there were 15 members in one group and 17 members in the other.

The messages were sent to the Professional Standards Department within the Police Service of Scotland who considered the messages “sexist and degrading, racist, anti-Semitic, homophobic, mocking of disability” and having a “flagrant disregard for police procedures by posting crime scene photos of current investigations”. It instigated misconduct charges against a number of police officers.

The officers brought a petition in the Outer House of the Court of Session complaining that using their WhatsApp messages to bring non-criminal misconduct proceedings against them was a breach of their Article 8 privacy rights and their right to privacy at common law.

What is Article 8 of the European Convention on Human Rights (ECHR)? 

Article 8 of the European Convention on Human Rights (ECHR) provides that;

“everyone has the right to respect their private and family life, their home and their correspondence” and that 

“there shall be no interference by a public authority with the exercise of this right except as accords with the law and as is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.

The Police Service of Scotland Regulations 2013 set out restrictions on the private life of a constable and said: ”A constable must at all times abstain from any activity which is likely to interfere with the impartial discharge of that constable’s duties or which is likely to give rise to the impression amongst members of the public that it may so interfere …”

The court found that there was no interference with the officers’ Article 8 rights as they had no reasonable expectation of privacy in the WhatsApp messages. 

When the individuals became police officers they accepted that the 2013 Regulations applied which required them not to act in a way that was likely to interfere with the impartial discharge of their duties or is likely to give rise to that impression among members of the public. The court said if officers behaved in a certain way in their private life they can have no reasonable expectation of privacy.

The court held that, even if there had been an interference of Article 8, it was justified as being necessary for public safety; an officer who fails to meet the necessary standards is likely to lose the confidence of the public and maintaining public confidence is essential for successful policing. Anything which exposes a mindset where the public’s right to be treated fairly is called into question would put public safety at risk.

The individuals appealed to the Inner House of the Court of Session and the appeal was unsuccessful. This is the first case that has specifically considered messages sent on personal WhatsApp accounts.

It is noteworthy that the court said that ordinary members of the public would, in general, have a reasonable expectation of privacy in their personal WhatsApp messages and that would still apply no matter how “abhorrent” the messages were. However, the court said there may be exceptions to that general rule and each case should be dealt with depending on all the circumstances.

In general, employees may be able to successfully argue that private WhatsApp messages cannot be used against them in disciplinary proceedings because of Article 8. However, employees subject to professional standards or working in regulated industries may not be able to; for example, lawyers, barristers, doctors and regulated workers in financial or other services, particularly where the messages indicate there may have been a serious breach of professional standards or may cause damage to public confidence in the profession. 

So, in some circumstances, an employer or regulator will be able to take action on the basis of otherwise private messages that are brought to their attention.

Employers should note that, in this case, the messages came to light because of a lawful police criminal investigation. The case does not deal with, or comment on, an employer’s right to openly or covertly monitor employees or demand that the employee discloses his/her communications on a private chat network.