Could a Constabulary use Officer’s WhatsApp message to bring misconduct proceedings?
In the recent case of BC & others v Chief Constable of the Police Service of Scotland & others, it was held that the Police Service of Scotland was entitled to use WhatsApp group chat messages to bring misconduct proceedings against officers who were members of that group chat. But to what extent does this impact upon wider employment and other rights?
The messages were discovered in July 2016 by a detective constable during an investigation into a serious sexual offence. They were found on a mobile phone belonging to a suspect and recovered during the investigation. The messages were considered to to be sexist & degrading, racist, anti semitic, homophobic, ableis and included a flagrant disregard for the police procedures by posting crime scene photos of current investigations.
The Officers in this instance argued that under Art.8 of the European Convention on Human Right every individual has a right to a private life. It followed, that in their view using the WhatsApp messages in the course of a disciplinary investigation was incompatible with their rights to a private life.
This argument was substantively dismissed by both the outer and Inner Houses of the Court of Session. The court concluded that the officers were holders of public office. By virtue of accepting the role of police officers, they had accepted certain restrictions on their private lives. The nature & content of the message were relevant in limiting their expectation to privacy; there was messages which were a clear breach of their duty to keep confidential information obtained in the course of their duties. The limit to their privacy here was the fact that the messages were suggesting that the officers were not capable of discharging their duties in an impartial manner.
It is important here to distinguish between nature of a police officer duty and the duties of any other ‘ordinary’ employees. The reason why the court dismissed their argument about a right to a privacy here is because officers are subject to professional standards on and off duty, and in particular in this case, an officer, by becoming a constable, agrees that his or her privacy is limited in that 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 of such interference.
This case, whilst clarifying in which circumstances public officers’ expectation to privacy are limited, does not necessarily limit the expectation to privacy of an ‘ordinary’ employee to the extent that this one does not interfere with another’s privacy however those wishing to avoid any future issues would be well advised to be mindful of there conduct and comments on social media, particularly when interacting with those they work alongside or where they are identifiable as employees of their employer.
Posted on Jan 12th, 2021 by Anthony Heywood