A junior solicitor has been given the green light to make a claim against her former firm over the hacking of her private WhatsApp account.

The unnamed solicitor had lost an employment tribunal claim for sexual harassment and unfair dismissal after making 79 allegations against her former employer ranging from inappropriate remarks to sexual touching. She had been sacked in December 2017 after falsifying a timesheet.

The tribunal had stated that the woman’s own WhatsApp messages, used in evidence against her, had ‘played a large part in our findings’ and either undermined her credibility or demonstrated that the conduct of which she complained was consensual or not ‘unwanted’.

During a hearing last month, the High Court heard that the woman now brings a claim for misuse of private information. There were some 18,000 messages occupying 900 pages of the tribunal’s bundle, which included a complete log of messages to her partner (now husband) and best female friend. These were disclosed in two tranches as part of the defence to the tribunal claim. Some of the messages and images which she shared with her partner ‘were of the most intimate kind’, the court heard.

The claimant’s case is that the managing and sole equity partner of her firm hacked into her messages by setting up a computer-based ‘WhatsApp Web’ and using her smartphone to scan the QR code generated. He was thereby able to capture the entirety of her available messages.

The managing partner, who is also unnamed, explained that a ‘substantial quantity’ of messages were found on the solicitor’s work laptop when he examined it to establish why she was attempting to log in after being dismissed. These messages were printed out and retained, following which they were deleted from the laptop. He added that two further tranches of messages had been received through letters from an anonymous source.

In FKJ v RVT & Ors, Master Davison was asked to rule on an application to strike out the solicitor’s claim and grant summary judgment on the firm’s counterclaim for abuse of process.

These applications were dismissed as without merit or in some cases ‘not worthy of serious consideration’. The master said the firm was attempting to ‘stifle a claim’ it would prefer not to contest on its merits. The arguments that litigating the claim offered no tangible benefit to the claimant, or that it revealed no real or substantial wrong, was ‘so unrealistic as to call into question whether the defendants have any genuine or honest belief in this being a proper basis for strike-out’.

He accepted that the claimant could have sought to exclude the WhatsApp messages from the tribunal evidence, but said there was no guarantee the tribunal would have agreed to this, and in any case it did not prevent her pursuing a misuse of private information claim in the High Court.

Davison added that he was ‘troubled’ by an anonymity order that had been imposed to avoid frustrating a permanent restricted reporting order made by the employment tribunal. He was minded to refer this issue back to the tribunal for consideration by the regional employment judge, but gave both parties the opportunity to make representations first.

Law society Gazzette

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