High Court refuses to strike out a claim for misuse of private information by an ex-employer
- Employment Law
- 22nd Feb 2023
Gareth Matthews, Head of Employment at MLP Law, reviews the High Court’s recent refusal to strike out a claim for misuse of private information by an ex-employer. In the case, an employee (F), a solicitor, brought a claim against her employer (R) after the latter had obtained 18,000 private WhatsApp messages sent from F […]
By Zara Green
MLP Law
Gareth Matthews, Head of Employment at MLP Law, reviews the High Court’s recent refusal to strike out a claim for misuse of private information by an ex-employer.
In the case, an employee (F), a solicitor, brought a claim against her employer (R) after the latter had obtained 18,000 private WhatsApp messages sent from F to her partner and best female friend and used them against her in Employment Tribunal proceedings. R argued that the messages were found on F’s work laptop after her dismissal or received via letters from an anonymous source. F stated that R had hacked her WhatsApp messages.
Master Davidson, sitting in the High Court, stated that F’s WhatsApp messages contained information regarding her personal and professional life, including details concerning her health and sex life, therefore, she had a reasonable expectation of privacy.
R tried to argue that F’s claim was Jameel abuse, i.e. no real or substantial wrong had been committed and litigation would yield no tangible or legitimate benefit to the Claimant proportionate to the likely costs and use of court procedures. Master Davidson stated that this argument was so unrealistic as to call into question whether the defendants (the managing partner of a law firm and two law firms connected with F’s employment) had any genuine or honest belief in it being a proper basis for strike-out. The breach of F’s privacy was enormous and could yield thousands of pounds in compensation if she was successful at trial.
Other abuses of process arguments were made by R, including Henderson abuse, i.e. F should have asked the Employment Tribunal to determine the hacking allegations, and breach of the implied undertaking arising under CPR r.31.22. Master Davidson rejected all these arguments.
The case contains interesting obiter comments concerning privacy law relating to WhatsApp messages. You can read the full judgment here.
If you would like advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 524 1956 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.
About the expert
Stephen Attree
Managing Partner
Stephen is the Owner of MLP Law and leads our Commercial, IP and Dispute Resolution teams which provide advice on all aspects of the law relating to mergers, acquisitions, financing, re-structuring, complex commercial contracts, standard trading terms, share options, shareholder and partnership agreements, commercial dispute resolution, joint venture and partnering arrangements, IT and Technology law, Intellectual Property, EU and competition law, Brexit and GDPR.
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