Effective Management of the Use of Social Media and Messaging Platforms at Work

Whether the prominence of WhatsApp is to be welcomed or feared by employers, the fact remains that it has become a popular means of instant communication by employees in both their private and professional lives. Employers are advised to adopt clear and comprehensive policies to effectively manage its use in the workplace, and to minimise the publication of content which may cause significant financial and reputational damage.

Blurred lines between private and professional messages

The group chat messages revealed in the recent highly publicised Labour party ‘WhatsApp scandal’, serve as another in a series of reminders that employers should not leave the widespread use of WhatsApp, or other popular instant messaging platforms, unchecked by their employees, particularly in the workplace. It is a common misconception that the words and actions of individuals said and done in private, including in a group chat on a platform with end-to-end encryption, will always remain private.

In the context of employment, the blurred line between our professional and private lives, which emerged with the rise and continuation of remote and hybrid working arrangements, has revealed one important consequence: an employer’s responsibility (and, ultimately, liability) to and for its employees may extend to the latter’s inappropriate social media and instant messaging use. Employers therefore have the crucial, but perhaps unenviable, task of striking the correct balance between recognising the advantage of WhatsApp to improve internal communication systems and employee relations, and restricting access as necessary to maintain a professional environment, prevent reputational damage or avoid potential employee claims.

Understanding the rise and benefits of WhatsApp

With over 41 million regular users in the United Kingdom alone, it is unsurprising that WhatsApp has not only infiltrated businesses, but businesses themselves have also taken advantage of its benefits as an effective, low-cost, instant communication tool across their workforce. It is already the most used instant messaging platform for personal communications between friends and family which has become increasingly central to how we organise our daily lives and maintain connections.

One of the key features of WhatsApp is the group chat. People can share messages and media to multiple recipients simultaneously, sparking group conversations which provides the opportunity to connect on a wider scale. This can, and often has been, with or without official employer consent, translated into a work context through individual colleagues and enter teams using the platform to connect with each other in a way that removes the formal and tedious character of endless emails.

There are many reasons which illustrate that access to WhatsApp in a work context benefits both employers and employees, including:

• WhatsApp is a user-friendly communication tool which very few people are unfamiliar with or do not have access to, at least in a personal capacity.
• Group messaging via an internet connection is particularly useful for establishing and maintaining a network of remote or hybrid workers from anywhere in the world, creating a virtual ‘break out’ space to encourage collaboration and new ideas.
• The platform allows for multimedia sharing, including images and documents, as well as text messages.
• Messages are instantly received, which is particularly useful for urgent communications such as reporting absences.
• Data privacy is protected through WhatsApp’s well known end-to-end encryption, which may create a degree of comfort when sharing more serious confidential or commercial information.

What are the key risks associated with using WhatsApp at work?

Despite, or perhaps because of, its growing popularity, using WhatsApp in the course of employment creates significant risks, particularly where there is little to no oversight by an employer and no clear rules on how to use platform appropriately.

Two of the key risks of using WhatsApp are:

Employees expressing themselves in an informal manner

The combination of WhatsApp being generally an informal means of communication and a misplaced reliance on privacy can lead to employees expressing themselves to colleagues in a more forthright and less professional manner, revealing their ignorance to the fact that their messages may be disclosable or, otherwise leaked, or that such messages may form part of an assessment of their conduct at work.

Example – Earlier this month, the leak of a number of controversial messages shared within a WhatsApp group chat (‘Trigger Me Timbers’) between over a dozen Labour MPs, councillors and other Labour party members, led to a party-wide scandal culminating with the firing of one MP as the current government’s health minister, and the suspension of other members from the Labour party.

This ongoing example highlights the dangers of sharing unfiltered private views, which often may not align with someone’s professional image or that of their employer, in a professional setting. It is highly unlikely, albeit not impossible, that the same remarks would have been shared by email or through other communication tools which can be easily monitored. End-to-end encryption means that WhatsApp messages are generally inaccessible, but the ease with which such messages may be forwarded or screenshot increases the chance that they will be seen by someone other than a sender’s intended recipients.

Example – As well as the risk of inappropriate and offensive messages being made public, confidential information is also at risk of being disclosed to people who are not entitled to have it. This was the case in August 2023, when Lanarkshire NHS Hospital was reprimanded by the Information Commissioner’s Office because its employees shared clinical information and patient data on WhatsApp in an unauthorised group chat, to which someone who should not have seen this information was added by accident.

Employers may be liable

Employers may be vicariously liable for the behaviour of their employees on WhatsApp when used in connection to their work duties, or within a WhatsApp group used for work purposes.

Typical issues which may arise, and lead to potential tribunal claims, include employees being deliberately excluded from a group resulting in them feeling ‘singled out’ or marginalised, spreading gossip or jokes under the label of ‘banter’ which may in fact cause offence, and sharing inappropriate content. Where such actions amount to discrimination on the grounds of another employee’s protected characteristics (race, sex, age, disability, sexual orientation etc.), an employer may be liable for these actions if a successful discrimination claim is brought against it by the offended employee.

Example – In, Muna Abdi v Deltec International Courier Limited, the claimant succeeded in a harassment claim brought after her resignation in 2018 following the discovery of a WhatsApp group on a colleague’s computer which contained negative comments on the claimant’s race, name-calling, and physical threats against her. The claimant took a screenshot of the messages and reported the group, but the resultant disciplinary action did not alleviate the negative interactions with one of the group’s members. In addition to finding that the disclosed messages were examples of unwanted conduct which related to a protected characteristic (race) and had the purpose and effect of creating an intimidating, hostile, degrading, humiliating and offensive environment, the employment tribunal also held that the employer’s handling of the matter was inadequate owing to the seriousness of the discriminatory and violent remarks made against the claimant in the messages. The claimant was awarded almost £25,000 in compensation.

Example – In Brosnan v Coalo Limited, the claimant was awarded £134,000 for a successful disability discrimination claim owing to his employer’s failure to make reasonable adjustments. Part of the claimant’s case included an argument that he had been victimised on the basis of his disability by being deliberately excluded from a work WhatsApp group set up by the employer during his absence on disability-related sick leave. The employment tribunal held that the claimant’s exclusion from the group was not justified.

Not only should employers and their employees be mindful of the content of WhatsApp messages, but to a lesser extent, a third risk relates to timing, namely the use of WhatsApp to communicate with employees outside of working hours. The rise of remote working has also led to the increased accessibility of employees to compensate for their physical absence. Caution is advised when contacting anyone outside of agreed hours as there may be a risk of that individual bringing complaints or claims for contraventions by their employer of the Working Time Regulations or for inducing work-related stress. In general, an awareness of the growing trend towards maintaining work-life balance should, likewise, form part of a manager’s decision to use WhatsApp to obtain a quick response from an employee in the evenings or during weekends, non-working days or holidays.

What is an employer’s responsibility?

Employers cannot rely on WhatsApp in-built end-to-end encryption service alone to protect information shared in messages. Employers should consider their duties under the UK General Protection Data Protection Regulation (GDPR) and other data protection laws to maintain comprehensive controls over the processing of personal data, which includes the implementation of organisational controls.

Employers should, however, be aware that this duty, and other compliance duties, may be more difficult to achieve because of WhatsApp’s inherent privacy protections and the ease with which messages can be deleted, edited or shared without being traced. If WhatsApp is to be used in the workplace, employers may wish to improve their ability to maintain oversight by confining its use to company devices which can be more easily monitored, and implementing, and auditing, measures to control how messages can be recorded in company databases or how long employees are required to keep messages.

When are WhatsApp messages disclosable?

Screenshots and forwarded messages are frequently produced in internal disciplinary hearings and legal proceedings. In certain circumstances, seemingly private WhatsApp messages considered to be sent in the course of employment may also be required to be disclosed by a court or employment tribunal.

In addition, if an employee makes a subject access request, this may include all relevant, work-related WhatsApp messages.

What should an employer’s approach be towards WhatsApp or other forms of social media and messaging platforms?

If employers wish to permit or encourage the use of WhatsApp or other messaging platforms for work-related communications, they must ensure that their employees are using them properly and professionally. As we have seen, poor oversight over a tool which is not originally meant for professional use may have dangerous consequences in a professional setting.

An outright workplace ban on using WhatsApp may appear to remove the aforementioned risks, but this may not be easy, or even possible, to enforce. Instead, an employer’s effective management of WhatsApp use can be achieved in two ways: policies; and training.

Policies

A clearly communicated, comprehensive policy on the appropriate use of WhatsApp will be key to ensuring that employees are aware of the standards of behaviour expected of them, what may constitute a deviation from such standards, and the consequences (often, disciplinary action) of poor behaviour. This policy could be contained in a standalone document or form part of an employer’s general policy on social media use. Any policy should outline the acceptable use of WhatsApp with examples of what is appropriate, such as:

organising work group outings and social events;

• informing employees of office closures, staff shortages, and shift availability;
• sending ‘thank you’ notes to employees when a job or project has gone well; and
• notifying (or reminding) managers and colleagues of absences.

A comprehensive policy on WhatsApp use may also include rules on what is generally inappropriate to share, including sensitive company data, personal information relating to customers and suppliers, images of other people (especially children or vulnerable people), or messages designed to bully or harass other colleagues. Finally, provisions on the consequences of behaving inappropriately on WhatsApp, including exclusions of team members from a group chat without good reason, should also be included.

Training

Alongside a written policy, employees should be educated through regular training about the risks associated with using WhatsApp, including the importance of not acting in a way which could discriminate against other colleagues and data protection responsibilities.

We can help

If you need support or advice with implementing policies or training on social media or instant messaging system within your business, then our employment team can help.