Swiss court upholds WhatsApp privacy in case of fired employee

A Swiss company must pay a worker it fired over WhatsApp messages in which she criticised her boss, a Swiss court has ruled, saying the firm violated her right to privacy by illegally inspecting the chats.

The Zurich Upper Court upheld a lower labour court ruling in deciding the company, whose name was not made public, inappropriately opened the chats and made copies of them during a routine check of employees' business mobile phones for defects and unauthorised software.

The company must pay the fired worker more than 25,000 Swiss francs (USD 25,345), court documents showed, including her costs for fighting an appeal brought by the firm that objected to the original decision handed down last August.

"Specific chats were opened and searched, without there being any suspicion or getting consent," the court wrote in its 29-page decision released this week.

"It should be noted that a WhatsApp chat between two people, as opposed to Facebook entries, is missing elements that lend it the character of public communication."

While the court did not give specifics about the messages sent via WhatsApp, a unit of Facebook, the company accused the administrative assistant of sending a colleague messages about her boss — with whom she shared an office — that amounted to sexual harassment.

The company, which court documents said provides personnel services in the health care sector, took screenshots of the WhatsApp messages to underpin its decision to sack the employee.

The court wrote it would have been more reasonable to simply delete WhatsApp, if the firm determined the social media app violated its rules against personal use of a company-provided device during work hours.

The employee, who worked at the firm from 2012 until her firing in June 2017, was also accused of feigning illness to skip work, betraying business secrets and bullying another worker.

The court, however, decided the company crossed the line and encroached on her privacy, which took priority or at least carried equal weight balanced against others' interests in the case.

The court decided there was "no legal basis in the employment regulations which justified such a search of the mobile phone," while adding the company can still appeal to the Swiss Federal Tribunal.