Workplace WhatsApp Woes

Most people are broadly aware of the perils of social media. However, workplace social media groups can be particularly problematic for both employers and employees. In this article Michelle Cronin, Partner at CKT looks at this issue.

The usage of social media apps is a phenomenon that shows no sign of abating. WhatsApp is the most popular social media app with up to 2 billion active users. Facebook Messenger is another popular app with up to 1.3 billion users.

The advantages of workplace social media groups include the development of friendships in the workplace.  It allows for the quick sharing of information and adds to the sense of community that a workplace can thrive upon. This is particularly important now with the emergence of hybrid working.

However, the disadvantages of workplace social media groups have become apparent in recent times, particularly in the UK. It has to be assumed that these issues are not unique to the UK and are more than likely replicated in Ireland.

Informal Communication, Blurred Lines and Accountability

Most employees and employers are now quite conscious of how, when and what they communicate via email and understand that this is the property of the employer and most firms have policies around email communication. That understanding does not always extend to a WhatsApp workplace group.

Social media is designed to facilitate informal communication. If the workplace social media group is limited to film or podcast recommendations, etc, then problems are unlikely to arise. It is when the boundaries become blurred and when the group is used to discuss and share employment related issues that difficulties emerge. The sharing of discriminatory and offensive material is another minefield.

An example of blurred lines emerged in the UK Covid-19 Inquiry which spent quite some time examining the WhatsApp messages exchanged by  Ministers and officials at various points during the pandemic. Some of the messages were unedifying, a lot had been deleted and it was clear that WhatsApp was used at critical times to facilitate critical decisions being made.

We know that the Irish Government also utilised WhatsApp as messages from a particular group were released as part of a FOI request in 2017. Some of the individual parties have had their own mishaps with WhatsApp over the last few years also.

The broad question to be considered – Is it appropriate that sensitive work related information is communicated in such an informal forum?  Is it appropriate that these messages can be deleted, not maintained for the record and thereby accountability reduced?  This applies to any workplace that facilitates decisions being made or instructions being given to employees via social media. Employers that allow or facilitate this are leaving themselves vulnerable if or when issues arise.

The Employee Perspective

People sometimes regret joining various WhatsApp groups. Workplace WhatsApp groups can mean that employees feel they can never switch off, that they are contactable all the time everywhere. However, leaving groups can feel like a declaration of intent. In a bad case scenario an employee may believe that leaving the WhatsApp group would be detrimental to their prospects. In a worst case scenario, the employee may be right.

Employees should be aware that how they choose to communicate on WhatsApp can have consequences for themselves as well as their employers.  In the last few weeks Nottinghamshire police in England have disciplined several members of the force for comments made in a workplace WhatsApp group in the aftermath of two students being stabbed to death.

In Ireland in 2019 an executive was held to have contributed to his dismissal (which was held to be unfair due to procedural defects) due to his derogatory contributions to a workplace WhatsApp group, in breach of the employer’s social media policy.

The Employer Perspective

Conduct on a WhatsApp group can form part of a claim to the WRC and employers need to minimise their exposure in this regard.

In a recent case in the UK, part of an employee’s claim related to her not being allowed return to a work WhatsApp group while she was on maternity leave. Also in the UK, an employee secured a significant award with part of his claim relating to his exclusion from a work WhatsApp group while on sick leave. It was held that excluding someone from a WhatsApp group can constitute a discriminatory “unfavourable act”.

In 2019 in Ireland an employee was awarded a significant sum when the WRC held that offensive comments including those made on a WhatsApp group amounted to harassment.

In a case involving Facebook Messenger, an employee was awarded €20,000 on appeal to the Labour Court due to sexual harassment arising from images shared on a Facebook Messenger group.

The inclusion of copies of WhatsApp messages is also an emerging trend in the context of data subject access requests and FOI requests.

What can an employer do to mitigate against workplace WhatsApp woes? The answer is to implement an appropriate social media policy. An employer clearly cannot insist that employees do not join a workplace WhatsApp group but an employer can legitimately insist that no messages relating to the workplace be exchanged outside of formal work channels. This is the minimum to be expected. If you or your business require any assistance in this regard please contact our Employment Team.