Text messages being admissible in court has gained rapid attention following the number of employment tribunal cases in which they’ve been used as evidence. With remote working now becoming mainstream, texting platforms like WhatsApp have become common practice for workplace communication.
Unfortunately, there seems to be a misunderstanding concerning the admissibility of digital evidence. With this in mind, we examine the issues regarding unofficial communication channels and how employers can mitigate the risks. We also look at the law on digital evidence and consider how to remain legally compliant.
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Spotlight on Text Messages Being Admissible in Court
Professional settings are becoming used to utilising texting platforms like WhatsApp for everyday communication. This is especially the case following the rise in remote working after the Covid pandemic.
Unfortunately, while this shift may offer convenience, it also introduces unique challenges for employers. As they pursue avenues of efficient communication, they must ensure employee behaviour is appropriately monitored and managed. Recent findings, however, suggest that many employers may be falling short in this responsibility.
According to Nockolds, employment tribunal hearings where text messages were used as court evidence surged from 150 to 427 between 2019 and 2023. This highlights that text messages are admissible in court, and employers may be unprepared for the implications of their use.
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Due to the “end-to-end encryption” on texting platforms like WhatsApp, it appears there’s a misconception over their admissibility. While this function may prevent external interception of correspondence, it doesn’t stop internal review should it become relevant in employment tribunal proceedings. Thus, this end-to-end encryption doesn’t make a relevant text message inadmissible court evidence.
Notably, a key reason for the rise in text messages used as court evidence pertains to their informal association. When users message via texting platforms like WhatsApp, there’s a tendency to be less conscious about professionalism. With this in mind, ‘banter’ and ‘casual remarks’, often not found in correspondence like emails, tend to creep in.
If overlooked, due to being admissible in court, such messages could reveal discriminatory attitudes and unprofessional behaviour usually not found in official channels. This admissibility has caught people out, like when an employee discovered racial slurs made about them in a private WhatsApp group.
The Hidden Risks of Text Messages Not Being Inadmissible Evidence
Employers may believe that ‘unofficial’ communication platforms are not their concern, but this simply isn’t the case. If an employer fails in its duties, even on WhatsApp, it could be vicariously liable for employee misconduct.
This was found to be the case when a tribunal ruled an employer had discriminated against a disabled employee by not including them in a WhatsApp group when they were on sick leave. The employee was consequently awarded £134,000 in compensation.
Tips to Avoid Employment Tribunal Proceedings
Since text messages are admissible in court, employers must address the risks associated with the communication as they would any other. Critical to this is establishing comprehensive policies that outline acceptable usage of such correspondence. Clear policies help set expectations concerning professional conduct and remind the workforce about the admissibility of digital evidence in all workplace correspondence, including text messages.
To further enhance the effectiveness of these workplace policies, employers should also consider training. By implementing training, employers can emphasise that text messages are not inadmissible court evidence and outline the potential repercussions of misconduct on such platforms.
However, employers mustn’t forget to update their policies regularly. Legislation is constantly evolving, and remaining in line with it is essential. A recent example is the Worker Protection Act, which came into effect in October 2024. Following its implementation, employers must take reasonable steps to prevent sexual harassment. With the heightened accountability on employers, workplace policies must be adjusted accordingly to ensure this is accounted for.
Admissible in Court: The Legal Standpoint
Messages on texting platforms like WhatsApp have become increasingly utilised as evidence in employment tribunal proceedings. However, among other things, the admissibility of digital evidence depends on whether it’s relevant, authentic, and reliable.
For such correspondence to be admissible in court, it must be accurate and untampered. In practice, this means that if a tribunal requests a WhatsApp exchange, the messages should be presented in full to ensure accurate context.
That said, value has been attached to the transparency provided by digital communications. Not only can it offer concrete proof when there are disputed events, but it also provides a timestamp for when things transpired.
Due to the Data Protection Act 2018 and GDPR, though, employers must ensure they comply with employee privacy rights in the UK. While tribunals may have the authority to request digital records, employers must only provide evidence directly relevant to the case.
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Furthermore, to promote awareness of employee privacy rights in the UK, employers should inform their workforce that messages sent on work devices or through work-related group chats may be admissible as evidence in employment tribunal hearings. This transparency may encourage employees to be more mindful of their communication in work-related spaces and serves as a reminder that their messages could potentially become public.
In any event, with text messages becoming increasingly recognised as admissible in court, employers should now be better positioned to take proactive measures. Reviewing policies, providing training, and maintaining employee transparency are key steps employers can take to mitigate the risk of vicarious liability in tribunal cases. If employers have any questions concerning the admissibility of digital evidence, it’s wise to seek legal advice.
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