Legal Speak – the dimensions of private workplace conversations

In light of  the David Walliams data breach case, Lorna Shuttleworth, Employment Solicitor, and Danielle Amor, Commercial Director at law firm Pannone Corporate, discuss what insights can be gleaned when confidential discussions enter the realm of public opinion.

In November 2022, longtime judge of Britain’s Got Talent, David Walliams, admitted to making “disrespectful comments” about two unsuccessful contestants, who appeared on the show more than two year earlier. The comments were reported in the Guardian, which claimed to have seen a “leaked transcript” of the remarks. Walliams left the show shortly after, following 10 years on the judging panel. At the time, he apologised for the comments saying, “These were private conversations and – like most conversations with friends – were never intended to be shared. Nevertheless, I am sorry.”

The dust appeared to have settled but, fast-forward nearly 12 months, Walliams has now filed a multi-million pound claim against the Britain’s Got Talent production company, Fremantle. Walliams is reportedly claiming that he is entitled to compensation for lost earnings and lost future earnings as a result of Fremantle’s data breach which seriously affected his mental health.

Walliams is clearly disgruntled that his comments were published and feels his reputation and livelihood have been tarnished as a result. However, he has limited options in terms of a legal claim against Fremantle. The leaked comments were not defamatory of him (he made them himself); he was not a Fremantle employee; and there is unlikely to have been a breach of contract.

Fremantle (or someone in its production crew) perhaps felt justified in disclosing that Walliams was not necessarily the “national treasure” character he portrays on screen. However, in the employment context, it can be very tricky managing a situation where information comes to light that causes you to see an employee differently. So what should you do?

• Set the standards early on. Whilst the David Walliams case is exceptional, many employers face the issue of discovering conversations between colleagues which are not appropriate for the workplace. In the most extreme cases, derogatory comments made by one employee about another could result in a claim for harassment. The employer will be liable unless it can show it took all reasonable steps to prevent the conduct taking place. One such step is educating employees on what is and isn’t acceptable in the workplace via policies and training, with managers reinforcing a culture where expectations are clear. Employees need to be aware that their conversations at work are not guaranteed to be private – even if they are speaking with a colleague in a WhatsApp chat, those messages may be disclosable in certain circumstances.
• Consider how the information has been obtained. As an employer, you should not be “snooping” on your employees by checking their social media or monitoring their emails. Unless the information has been lawfully obtained, you should be very wary about taking action.
• Is the information true? Making statements to a third party of information which is not true could lead to a claim for defamation. Check the veracity of the conversation before disclosing it to anyone else.
• Comply with the GDPR. Assuming the information is true and would lead you to think differently of an employee, consider whether you can use that information to take action in accordance with the GDPR. For example, “criminal offence data” under the GDPR is subject to stricter requirements than ordinary personal data and you need additional justification to process that data.
• Consider your employees’ wellbeing. Even if you are entitled to take action, consider how your actions will impact on the wellbeing of the employee concerned and the wider staff team. These matters should be handled sensitively to avoid negatively impacting individuals’ mental health.

In the “cancel culture” era, it is difficult to know where to draw the line. Public backlash can arise and you risk upsetting your workforce where action is taken or not taken, or taken too quickly or too slowly! Spent convictions and decade-old posts on social media clearly have to be put to one side, but it is so easy for a person’s private life to seep into the professional sphere and damage their professional reputation as well as future employment opportunities.

Walliams is a household name, so perhaps held to a higher standard than most; however, over the last few months we have seen senior figures step down from the likes of NatWest, BP, the CBI, the Pennine Care NHS Trust, UK Athletics and Tesco to name a few, over behaviour or comments seen as conflicting with their professional roles. Often, once the information is made public, events take over and the outcome is determined by the court of public opinion. As such, individuals need to be aware that ‘private’ conversations at work may not always remain private.