WhatsApp messages - key evidence of an employee's wrongdoing?
posted 2nd July 2019
Many employees would consider that messages sent on social media sites or messaging sites, such as WhatsApp, would be safe from ever being scrutinised by their employer, let alone the court. The judgement of the Court of Appeal in Forse & ors v Secarma Ltd & ors is an important warning to employees and employers that this is not always the case, and how WhatsApp messages can form the key evidence in such cases.
Facts of the Case
The claimants were cybersecurity companies (Secarma Ltd) who specialised in "pen testing". This involved IT consultants deliberately trying to hack clients systems in order to test their security.
The respondents at the time worked for the companies as employees and directors and as such they were subject to various restraints and restrictive covenants. They were accused by the claimant of seeking to poach key employees on a large scale- for illustration when the claim was issued there had been 28 resignations, which represented almost half of the workforce. The intention was for these key employees to join a rival business ("Xcina"), which was intending to set up its own pen testing service in competition with the claimants.
The claimant's evidence was in the form of WhatsApp messages between directors of Secarma Ltd and the Managing Director of Xcina. The messages were (to a certain extent) disguised, with pseudonyms used (the group chat being called Order of the Phoenix and the plan disguised as being in relation to a bowling championship!). Less disguised was, in relation to an intention to delete the contents of the messages due to the potential "legal consequences due to the non-poaching clauses".
Springboard Relief
The claimant sought an interim springboard relief injunction. The purpose of such a relief is to prevent the defendant from benefitting from something that has been wrongly gained (for example by breaching a non-poaching clause). The application of such an injunction is applied narrowly by the courts, and any granted injunctions are limited to the period for which the advantage may reasonably be expected to continue.
In this case, the relevant injunction prohibited a range of activities pending the start of an expedited trial within five months, including enticing away any further employees, the provision of pen testing services to their new employer by the relevant employees, and any solicitation or dealing with clients of the previous employer.
The key legal point from the case is that in springboard injunction cases it will generally be necessary for the judge to assess the strength of each side's case on liability, as well as the length of time that the unfair competitive advantage from the relevant wrongdoing at issue will continue.
In this case the WhatsApp messages were sufficiently damning and provided sufficient evidence of prospects of success at trial, making it key at the interim injunction stage.
This case should serve as a warning that all electronic data, such as from WhatsApp, is potentially subject to disclosure in legal proceedings.
From an employer's perspective, it is important to have an IT and communications policy/social media policy in place as, in less extreme examples than the case outlined above, a pragmatic and enforceable social media policy allows an employer to minimise risk associated with employee use of social media by proactively defining acceptable and unacceptable uses in the context of the employment relationship.
The information contained in this article is for information purposes only and is not intended to constitute legal advice. If you require further information our employment team would be more than happy to assist you. Please contact us at 029 2009 5500 to speak to one of our team or via our Get a Quote page at www.greenawayscott.com/get-a-quote
