DEALING WITH WHATSAPP MISCONDUCT IN THE WORKPLACE
WhatsApp can be a brilliant way of communicating with colleagues and disseminating information/seeking views quickly. However, there are also dangers that the forum is seen as informal, and that normal business rules don’t apply to messages exchanged on the platform.
As the Labour party grapples with calls to widen its investigation into the WhatsApp group reportedly titled ‘Trigger me Timbers’ – which has seen one minister sacked and eleven suspended - we set out below some key points for managers and HR practitioners when dealing with alleged WhatsApp misconduct.
1. A WhatsApp message may constitute harassment even where the writer had no intention of the message being seen or read by the person (or people) it was written about; it is, of course, easy for individuals to forward messages on to others, or to take screenshots and share with others who are not members of the group. Those individuals could, in turn, have a valid harassment claim, if they are offended by what they have seen. It is therefore extremely important to make it clear to employees – ideally in a Social Media policy and within your Equality & Diversity policy, that messages sent via social medica platforms (including WhatsApp) which could be regarded as offensive will constitute gross misconduct and will not be tolerated under any circumstances, regardless of who the recipient of the message is.
2. Provided you have a clear policy in place which states that messages exchanged on work devices, or in a work content, may be monitored and may form the basis of a disciplinary investigation, it will be very difficult for employees to claim that they had an expectation of privacy / claim that the messages cannot be relied upon.
3. Where you do have a clear right to inspect employee WhatsApp messages, it is likely to be necessary – as part of a reasonable investigation - to ask employees to disclose further messages when you have, for example, only been provided with a screenshot of one or two messages in a particular group exchange. This will depend on the circumstances of the case and the content of the messages you have seen. You may also be able to draw inferences from an employee’s reluctance or refusal to share messages with you, but again this will be fact specific.
4. Where your managers are on notice that offensive or discriminatory messages are being shared via employee WhatsApp groups (or even worse, they are instigating or joining in with these exchanges), it may be reasonable to hold them to a higher standard than less experiences colleagues. Again, this will depend on the circumstances of the case.
5. Where the business is on notice that offensive or discriminatory material is being shared in employee WhatsApp groups, and it fails to act on this, it risks costly discrimination claims – a tribunal can award compensation for injured feelings in these types of cases - an award which is uncapped, and is typically above £30k for very serious cases. Further to new legislation in October last year [INSERT LINK] the tribunal can also place an uplift on any compensation awarded, where it finds that the business did not take reasonable steps to protect employees from harassment. This is why, we believe, Natwest took the step of banning employee WhatsApp groups towards the end of last year – it just will not have wanted to police, or take any responsibility for, these exchanges. As we have alluded to in point 1, if you do allow employee communication via WhatsApp, it is critical that you issue clear policy statements about what is, and what is not, appropriate.
6. Copies of WhatsApp messages are disclosable in tribunal proceedings where they are relevant to the issues in a case, and so should be preserved in the same way as emails and other types of correspondence. These messages may also be disclosable if an individual submits a Subject Access Request, again depending on the nature of the request and if any exemptions apply.
7. Where individuals engage in offensive banter on a non-work WhatsApp group, and this is brought to the company’s attention, an analysis will need to be done as to whether the existence of the group messages has the potential to bring the business into disrepute, or indeed whether the fact the individual(s) behave in this way in private makes their ongoing employment untenable. These cases will be very fact sensitive and will depend on several factors including what has been said, about whom, the role of the individual, and the nature of the employer’s business.
If you find yourself dealing with social media misconduct, and this obviously may take place on a variety of platforms and not just WhatsApp, then please do get in touch and we would be happy to discuss this further with you.