With many organisations having moved to a work-from-home or hybrid arrangement for employees, beyond the general work discussions that take place on platforms such as Zoom and Microsoft Teams, there remains a need for social connection, and while not the same as a conversation over coffee in the canteen, social media goes a long way towards filling that void, even more so since the Pandemic.
There has been, and always will be, much said about the risks of using social media with regards to the workplace, but this often centres around the very public social media platforms such as Twitter, Facebook, Instagram and Tik Tok, where everyone’s activities, locations, perspectives and experiences can be laid out for anyone (depending on the privacy settings used), anywhere in the world (with or without an account), to browse, often leading to controversy, media scrutiny, and in some cases, legal action.
But what about private messaging apps, like the hugely popular WhatsApp? With so many organisations now using it as part of their communications, does private messaging carry the same level of risk from inappropriate behaviour as the big public platforms?
WhatsApp Private Messaging
WhatsApp, while known and used the world over, hit headlines recently when it was revealed that the UK Prime Minister Boris Johnson was using the app for conducting Government business. This caused a stir as it called into question where to draw the line between personal use and business use.
WhatsApp is a private messaging app that allows users to have conversations back and forth, away from the eyes of the world that would usually focus on public social media platforms. However, the private nature of this app does not exclude the risks that typically come with public social media.
The Risks
WhatsApp allows for ‘group chats’ – private conversation feeds that can take place between up to 256 participants (soon to be increased to 512 participants). This format is of most appeal to colleagues who wish to engage in conversation as a group, just as they may have done in a traditional office setting.
However, if conversations involve inappropriate banter, or sharing of jokes, comments or images that could be deemed discriminatory, harassing or such like, the employer can potentially be liable for these actions, and employees within the group chat can raise grievances, even going as far as making a claim at Tribunal and seeking financial recompense against their employer.
If conversations take place outside of work, is it any of the employer’s concern?
Some may argue that private WhatsApp conversations that take place outside of working hours or while everyone is away from the working environment, should not be any business of, or of concern to the employer. However, depending on the context of the group (for example, it involves solely employees of the organisation and was created purposely for the management of a work project), the employer must still investigate the matter and pursue disciplinary action if deemed necessary and appropriate.
Can an Employer monitor or request access to Employees’ WhatsApp conversations?
While posting inappropriately to public platforms like Facebook and Twitter can result in disciplinary action from employers, the wrath of the general public, and bans from the operators of the platform, WhatsApp, due to its private format, proves challenging to monitor. Therefore, it is more prudent to focus on educating employees on how to professionally and socially (in the context of work,) conduct themselves and what is expected of them when using these apps in work-related circumstances.
It is also a wiser way to go, given that taking action to monitor or access employees’ WhatsApp activities will bring with it the added complexity of data protection obligations and employees’ rights to privacy, particularly when using their own personal devices.
How can employers protect themselves against risks?
Employers should have a robust Social Media Policy in place, and to cover any issues that may pertain to private messaging apps such as WhatsApp, a Communications Policy is also strongly recommended (please contact us should you need assistance in creating or updating such policies).
The policies should lay out the organisation’s views on the use of WhatsApp for business purposes – this includes the types of communications acceptable, the use of work devices versus personal devices, and whether personal conversations (outside of a polite ‘hello’ and ‘how are you?’) may take place within the same environment as business conversations. It should also clearly detail what happens once the employee leaves the organisation. It should make it clear as to what is deemed appropriate and inappropriate behaviour, and that any breaches of the policy could result in disciplinary action.
Providing training on the use of social media for work-related activities at the point of an employee’s induction and at regular intervals throughout their employment will serve to minimise the risk of breaches (inadvertent or otherwise), protect employees and the employer from the risk of being taken to a Tribunal, and in the event a matter does go to Tribunal, prove that all reasonable steps were taken by the employer to protect all parties involved.
The training should also inform employees that WhatsApp is not dissimilar from public platforms such as Facebook and Twitter, in that comments or images posted can be saved and used as evidence in the event of inappropriate behaviour. The fact that WhatsApp messages are private and end-to-end encrypted does not eliminate the possibility that deleted messages can be retrieved by data experts and subsequently used in legal proceedings.
Conclusion
Social media and online messaging is one of the trickiest technological developments to hit Employment Law in recent years, and the arrival of the Pandemic has brought the need for careful management of it into even sharper focus. If you need further assistance with this topic, please do not hesitate to contact us.