WhatsApp messaging is becoming increasingly popular in the workplace as a way for colleagues to communicate with each other. However, it can present its own set of challenges, as illustrated in a recent case where teachers were swearing and using poo emojis on the messaging service to criticise vulnerable students. The case highlights the blurring of lines between the use of WhatsApp for personal communications, interactions between colleagues and business purposes. The concept that such communications are private was thrown into doubt when Boris Johnson, other MPs and civil servants were ordered to submit WhatsApp communications between January 2020 and February 2022 to the official Covid-19 inquiry.
Employees will for the most part be unaware that their WhatsApp messages may have to be disclosed as part of court or tribunal proceedings or in reply to a data subject access request. Because of this lack of awareness by employees, they may well not express themselves in a professional or considered way. Employees may communicate something in a work-related WhatsApp message that may lead to the employer being “vicariously liable for actionable claims”. For example, if the message is discriminatory, concerning one or more of the nine protected characteristics under equality legislation, the employer may face a compensation claim for discrimination.
A tribunal ruled that the contents of a group WhatsApp conversation used by employees of Deltec International Courier constituted harassment because it was unwanted conduct that had the effect of violating the dignity of an operations clerk. Employees might make unauthorised disclosures of the employer’s confidential information or that of the employer’s clients via WhatsApp messages and this could cause damage to the employer’s business either directly or by claims from the employer’s clients for breach of confidence. While WhatsApp messages are encrypted end to end, employees should remember that all written, video and audio communications have the potential to be recorded and shared. This means that sharing sensitive business information in a group chat is unwise and companies should have a policy that covers online security.
When using a work chat for banter employees should remember that it only takes a moment for someone to screen grab them and send them to their line manager. The test of never writing anything down that you wouldn’t want read in open court holds true.
Employers should consider how they use platforms such as WhatsApp in their business and whether communication via these platforms is the best method. Clear policies and procedures should be in place to help reinforce the organisation’s stance and will also help to minimise risks. Many employees harbour the misplaced belief that instant messaging disappears quickly and does not present a meaningful paper trail, but numerous high-profile media stories highlight that this is not the case. The simple rule to remember is that if you write and send something less than positive, there is always the chance that it will be copied and then a possibility that the message will end up being seen by someone other than its intended audience. Employers should therefore ensure that all employees fully understand the implications of social media use. This is particularly important in a more remote working world where many of the face-to-face personal interactions of the pre-pandemic years have moved to written.
Employees can be allowed to safely let off steam through designated channels. A good manager will be equipped to treat such conversations as confidential and help employees turn their frustration into something more constructive. Healthy dialogue is key to a good workplace but that does not mean that staff should be permitted to use insulting or degrading language. A safe place for an employee to offload concerns about work would be via an employee assistance programme if one is provided by the employer. Where an employee wants action to be taken about a matter at work that concerns them, they may raise a formal grievance.