Frontline UK Employment Law Update Edition 20 2023 - Case Updates

1. FKJ v RVT and others (11 January 2023)

2. Mr G Meaker v Cyxtera Technology UK Ltd (21 February 2023)

3. Benyatov v Credit Suisse (Securities) Europe Limited (17 February 2023)

4. Glover v Lacoste UK Ltd (2 February 2023) 

1. FKJ v RVT and others (11 January 2023)(LINK)

In this case, the English High Court has refused to strike out a misuse of private information (“MPI”) claim issued by an employee against their former employer, after the employer produced 18,000 of the employee’s WhatsApp messages (of which only 20 messages were deemed relevant and therefore disclosable as evidence in Employment Tribunal (“ET”) proceedings).

The Claimant employee was dismissed for misconduct after falsifying timesheets and brought claims before the ET for (principally) sex discrimination, unfair dismissal and wrongful dismissal. The Claimant was unsuccessful in her claims as the Defendant employer could show, using the Claimant’s own WhatsApp messages, a “direct conflict” of evidence undermining her credibility.

Whilst unsuccessful in her ET claim, the Claimant then initiated a MPI claim in relation to the Defendant’s possession of her 18,000 WhatsApp private messages, which covered her time both as an employee and after her dismissal. The Claimant claimed that the Defendant had hacked into her WhatsApp to obtain the messages. The Defendant disputed this, saying that some had been found downloaded onto the Claimant’s company laptop and the remainder had been provided by an “anonymous source”. The Defendant argued that the MPI claim should be struck out as having no reasonable prospect of success.

The High Court refused to do so, indicating that the MPI claim is likely to be successful if it proceeds to a full hearing as the Defendant’ actions were “a very serious breach of her [the employee’s] private information”, especially given the public nature of the ET proceedings.

Pertinently, the Defendant failed to explain how the Claimant “could not have had a reasonable expectation of privacy or confidence in relation to material saved or downloaded to her work laptop” especially where the messages were apparently “intercepted by the writer of the anonymous letters…” [11]. The Defendant also failed to provide an explanation or authority “for the proposition that private information downloaded to a work laptop (a very common scenario) thereby loses its private character.” [11]. The Court further questioned the justification for the retention of all the messages when only “some 40 or so of the messages…were in fact deployed in the Employment Tribunal claim and only about half of those 40 were strictly probative of an issue (and therefore disclosable)” [11].

Whilst the English civil courts and Employment Tribunals tend to admit relevant evidence even where there is a question over whether it has been lawfully obtained, this case serves as a helpful reminder that there may yet be legal consequences for parties who seek to rely on evidence obtained unlawfully. The Court drew a clear distinction between company information and private information (regardless of whether the information is shared on a work laptop during working hours), and stated that if the information is clearly private an employer owes a duty to return the private information to the employee. Employers should therefore be wary of relying upon an employee’s private information in a dispute even if it disproves allegations being made by the employee, and carefully weigh up the risks of doing so before proceeding.

2. Mr G Meaker v Cyxtera Technology UK Ltd (21 February 2023) (LINK)

In this case, the Employment Appeal Tribunal (“EAT”) upheld an Employment Tribunal (“ET”) decision that the Claimant’s effective date of termination (the “EDT”) was the date set out in a “without prejudice” letter confirming agreement of a “mutual” termination, despite the Claimant rejecting the settlement proposal in the letter. Whether a document or communication amounts to a dismissal is a matter for objective…