Is it legal for an employee to get fired because of private messages?

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Is it legal for an employee to get fired because of private messages?

Privacy within the workplace is becoming a topic of increasing importance to employers and employees alike. However, many legal cases have highlighted the dubious and complex nature of this topic. In light of this HRreview looks at two recent cases involving these matters surrounding PNC Global Logistics and Heathrow Airport.   

The implementation of GDPR in 2018 has added new rules to privacy as well as existing laws such as the Human Rights Act 1998.

These two recent court cases have pushed this issue, privacy and employee rights, to the forefront.

The recent Forbes v London Heathrow Airport case posed the question of whether a company can be held liable for inappropriate posts issued by employees. In this case, an employment tribunal ruled that as the employee shared a racist post on her own personal page, without using work equipment, outside of work hours, it was not lawful to consider London Heathrow Airport responsible for her views.

Another ongoing case has also raised this issue with two male employees. This case being between Paul Wells and Roberto Solari, and PNC Global Logistics, a logistics firm based in Surrey, for “gross misconduct”. This misconduct took the form of ‘sexist’ comments being made about female employees in the company which occurred within a private WhatsApp group chat.

Although the lawyer for the two men are claiming this is an “infringement of right to privacy” as there was “no policy permitting the employer to inspect the Whatsapp chat”, the lawyer for the company has retaliated by stating the messages were sent during “business hours” and were therefore “a breach of duty”.

The pair are also arguing that the company is using this as an excuse to not pay them the £300,000 worth in shares they hold together.

Professionals in HR and employment law seemed to have different opinions on the argument.

Catherine Kerr, partner and head of employment at Primas Law, said:

The High Court case against Cathay Investments 2 Ltd (the company that bought PNC in 2017), provides a stark reminder for employers to review their policies and procedures regularly through the lens of modern technology.

Under GDPR, employers must make it clear what information may be collected about staff. If an employer wishes to search an employee’s work mobile including social media applications, it is vital that the employer’s privacy policy; data protection policy and disciplinary policy expressly permit an employer to do so. Otherwise, such information may not be admissible when it comes to disciplinary matters.

Helena Rosenstein, senior solicitor in Blake Morgan’s employment law team, said:

Employers could be vicariously liable if they do not take all reasonable steps to prevent workplace discrimination or harassment. This means that they should clearly publicise that workplace harassment is unacceptable, whether or not on work devices, and have policies to ensure compliance.

Michael McLaughlin, national head of employment, DWF, a global legal business said:

WhatsApp and other chat apps have become part of business communications and are really no different than using email with a restricted distribution list. Using alleged privacy as a defence is like arguing, “we did not mean to get caught”. Most harassers do not intend for their comments to be discovered.

Elena Manukyan, solicitor at Graham Coffey & Co Solicitors, said:

There should be no difference between sending inappropriate messages on a work phone or private phone. Only the content of the messages themselves should be taken into consideration. Plus sending inappropriate messages using a work-phone, during working hours, will in no doubt be in breach of company policy.

Employees who display offensive, degrading or bullying behaviour towards colleagues, whether that be in the office, or in a WhatsApp group, should be subject to disciplinary action, and even dismissed, if their conduct is considered serious enough.

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