The right to privacy is not absolute.

The right to privacy is a constitutional right in Kenya, protecting persons from infringement of their communications. Personal data protection is governed by the Data Protection Act 2019.

However, what happens when employers are required to conduct investigations on their employees’ personal and company property for workplace misconduct?

In a recent ruling by the Employment and Labour Relations Court in Nairobi, it was held that private communication found in an employer’s computer is not subject to protection under Article 31 of the Constitution of Kenya. The claimant had been dismissed for allegedly sharing defamatory information against the employer to a social media personality, contravening the school’s policy. The claimant averred that his dismissal was founded on an illegality that the information that led to his dismissal was obtained illegally, violating his right to privacy. The information was retrieved from WhatsApp messages from an account logged into a computer owned by the school. The court held that there is a limitation to the exercise of the right to privacy, pursuant to Section 6(1) (d) of the Access to Information Act, and therefore, there was no invasion of privacy against the employee.

In another case, the Employment and Labour Relations Court upheld the dismissal of a Kenya Revenue Authority employee based on evidence from WhatsApp messages. However, in this case, the messages were not obtained from company property but rather, the employee’s phone was confiscated during the investigation process. It was established that the dismissed customs officer had allegedly solicited a bribe from a company following a tax audit. The claimant had denied the allegations and claimed that the WhatsApp messages were personal and unrelated to official business. The Court dismissed the defence and ruled that the termination of the employee was procedurally fair under the Employment Act and the KRA’s code of conduct.

These two rulings cement the notion that the right to privacy is not limitless. There will be more issues arising from the need of the employer to conduct investigations on alleged workplace misconduct vis-a-vis the employee’s right to privacy that may need to be explored.