WhatsApp, Employment Law and Subject Access Requests

It is often assumed that because WhatsApp is an external app and end-to-end encrypted, messages are not capable of being disclosed as part of a response to a subject access request. However, this area of law is not yet fully developed in relation to data protection law and thus is unclear and as of yet untested in the courts or tribunals. 

As a general rule, it is arguable that if employers specifically encourage or endorse the use of WhatsApp as a means of business communication, the content of such conversations will be disclosable as part of a subject access request response.

Given that such messages may be disclosed, it is important to protect against the risk of any potential discrimination or claims on the basis of vicarious liability arising out of the content of WhatsApp conversations between employees. Employers who don’t encourage or endorse the use of WhatsApp for business communication are advised to make this unequivocally clear in social media and other relevant policies. Please ensure that your office manuals are up to date on this issue.

Given the increasingly blurred line between work and social life, the content of WhatsApp conversations between employees can be a significant source of legal and reputational risk to employers. Employers should thus confirm their position on third-party chat apps such as WhatsApp, Instagram, and Facebook Messenger to employees.

At Alexander JLO we have decades of experience of dealing with all aspects of employment and business law and will be happy to discuss your case in a free no obligation consultation. Why not call us on +44 (0)20 7537 7000, email us at info@london-law.co.uk or get in touch via the contact us button  and see what we can do for you?

This blog was prepared by Alexander JLO’s senior partner, Peter Johnson on 6th April 2020 and is correct at the time of publication. With decades of experience in almost all areas of law Peter is happy to assist with any legal issue that you have. He is widely regarded as one of London’s leading employment lawyers and is a member of The Employment Lawyers Association. His profile on the independent Review Solicitor website can be found Here