Mobile messaging services - what's the evidence?

United Kingdom

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

Over the last decade, the labour courts have had to keep pace with technological developments in the workplace when determining the admissibility of evidence. We consider below the attitude of the courts in Spain, France, Germany and the UK to the admissibility of conversations between employees using mobile messaging services.

According to a recent judgment of the Superior Court of Justice of Galicia, which addressed this issue for the first time in Spain, an employer can rely on mobile messaging conversations in evidence before the courts provided it has not breached privacy or data protection rights in the process of obtaining the evidence and the origin and authenticity of the message can be verified.

Similarly in France the courts often accept evidence obtained from for example, social media posts, text messages and voice messages.  However, again, they only do so where they are satisfied of the authenticity of the evidence and that it was not obtained in violation of privacy and data protection rights.  Privacy is a key principle under French law and it is well established that employees are entitled to privacy in the workplace.  Accordingly, even where mobile messages have been sent from a mobile device provided by the employer, it is very likely that a judge would refuse to admit such messages as evidence of a conversation to which the employer was not a party, as they would be considered to be private correspondence.

In Germany, generally, a message can be admitted as evidence in court proceedings. However, whether it can then be taken into consideration by the judge is a separate issue.

In determining this, the first question to ask is was the message obtained in compliance with the law? The data of the message is only known to its sender and its recipient and obtaining the message may, in certain circumstances, be a violation of privacy or data protection rights, particularly in an employment relationship.  Secondly, if rights were violated, does that mean the judge cannot take the message into consideration? German civil procedure rules do not answer this question specifically, but as a general rule, German labour courts are not likely to consider any messages obtained in violation of an employee's privacy or data protection rights.

To date, the UK employment tribunals have taken a fairly holistic approach. Mobile messaging conversations are certainly potentially admissible evidence in the UK. Although ordinary courts rules are more complex, the employment tribunal rules place great emphasis on pragmatism in deciding upon the admissibility of evidence. Given the flexibility afforded to tribunals, potential evidence could sometimes be admitted on the basis that the tribunal may later decide to attach little or no weight to it depending on the circumstances in which it was obtained.