Football pundit Jermaine Jenas and newsreader Huw Edwards may be the most well-known, recent examples, but there are many employees who have lost their jobs due to inappropriate behaviour on WhatsApp or other messaging platforms.
For example, in May 2024 an employment tribunal found that it was fair of Home Office contractor Mitie to dismiss an employee over comments made in a staff WhatsApp group.
All types of social media and messaging apps/ platforms, not just WhatsApp or Slack, present challenges when used for communications between colleagues and/ or clients.
What’s appropriate?
The informal nature of these platforms means it can be difficult for people to observe an appropriate boundary between the professional and personal – or even to agree where this lies – and different age groups may have different expectations.
Businesses end up dealing with the fall-out, facing legal claims from employees and potentially, trying to clean up the mess of bad PR and reputational damage.
But, if used appropriately, the convenient and secure nature of WhatsApp and other platforms make them effective business tools. So, what should you do?
Businesses face legal risks
If you know that your staff are using WhatsApp (or alternative) for business purposes, we recommend putting in place a policy framework to ensure everyone knows where they stand and to help mitigate the legal risks.
Here’s some suggestions for what to think about and include in your policy:
- Will the policy cover use of WhatsApp groups on personal devices/ company devices or both?
- If you already have a personal device policy make sure your WhatsApp policy is consistent with this (and any other relevant policies). For example, make clear that relevant WhatsApp messages on an employee’s personal phone may be required to be disclosed by a company involved in litigation as part of its disclosure obligations.
- Make clear that staff should not mix personal and business communications on WhatsApp and that if WhatsApp is used on a work device they should have no expectation of privacy.
- Are you happy for colleagues to message each other about work matters on their personal WhatsApp groups or do you want to restrict such communications to dedicated work WhatsApp groups only?
- Will business-related groups have to be formally authorised by management?
- If communications are to go via a dedicated work group who will the members of that group be and what restrictions, if any, will there be on who can join?
- What will people need to do to join the group, do they have to join? Be careful not to unjustifiably exclude relevant staff from the group (not forgetting those on sick leave or parental leave) as this could lead to claims of discrimination.
- Who will monitor and administer the group? For example, who will be responsible for obtaining user consent for data protection purposes?
- Are you happy for everything to be discussed on a work group or do you want to specify anything which must not be communicated using this medium? For example, anything sensitive, formal or lengthy for which email or document might be more appropriate?
- Spell out that all communications on the group must be polite, respectful, free from discrimination and that nothing which may be reasonably considered inappropriate, demeaning or inflammatory should be sent.
- It might be helpful to remind users that messages sent on WhatsApp are disclosable in the event of future litigation and they should not send anything they would feel uncomfortable being made public. A helpful rule of thumb could be, if you are not sure whether it’s ok to send something then don’t!
- Remind users that all relevant HR policies apply to WhatsApp group communications, for example, any confidentiality, data protection, discrimination and bullying and harassment rules.
- If customer data could be shared, make sure your privacy notices are up-to-date and that staff understand their legal obligations around processing personal data.
- Are you happy for the group to share pictures or videos? It may be that this is necessary for business reasons, but this will vary from organisation to organisation.
- Think about the level of confidentiality and data security you need to be applied to groups and specify how you want users to comply with these.
- Make clear that staff may be expected to hand over their WhatsApp communications for auditing, regulatory, litigation or disciplinary purposes or to satisfy a data subject access request.
- Make sure staff know what their record keeping requirements are when it comes to their WhatsApp messages. This maybe under a separate record retention policy but make sure your WhatsApp policy is consistent. Do you expect them to back up or transfer business related chats to an official, internal database for record keeping or just file screenshots? WhatsApp now has disappearing messages what is your policy on using this?
- Be clear that inappropriate activity may result in disciplinary action, up to and including dismissal being taken.
How can we help?
If you are considering how to manage the legal risks of staff communications, we can advise you on the legal issues relevant to your business, assist with drafting an effective acceptable use policy and deliver training to ensure your staff understand what’s expected of them.
