The continuing rise in use of social media has created yet another issue for employers to grapple with and manage in the workplace. The new reality is that employees are increasingly using their smartphones in the office or accessing social media and messaging platforms via their employer’s IT systems. As part of this shift, employees now often use WhatsApp for a mix of personal and business purposes, which brings the challenge of effective monitoring during business hours.
There are clearly pros and cons in relation to social media use, and WhatsApp in particular, but employers need to be mindful of managing it carefully. Otherwise they face the risk of exposing their business to allegations of breaches of confidentiality and data protection under the Data Protection Act 2018, as well as bullying and harassment claims under the Equality Act 2010.
The pros and cons of using WhatsApp
WhatsApp is excellent for engaging with and managing remote teams. With its ease of communication, flattening of hierarchies, and ability to act as a virtual ‘water cooler’, when it comes to creativity it’s an ideal hub for people to come together and have conversations that may spark new ideas or products and other business improvements. What’s more, the security of the messages is ensured due to the end-to-end encryption, which means only the sender and the recipient/group can see the message.
Increasingly though workplace issues are arising from the unofficial use of tools like WhatsApp.
Recent research by Guild has shown that more than 50% of workers use messaging apps for workplace communication and 38% for work-related matters, and this is likely to continue to increase. As a result, a growing number of our clients are seeking advice on managing grievances and claims for bullying and harassment that involve inappropriate WhatsApp or other social media messages. These claims commonly arise from:
- Being excluded from groups and plans for after-work social activities.
- Gossip or ‘banter’ and inappropriate language in messages.
- Inappropriate pictures or videos being shared.
Both new joiners and existing staff are at risk of being excluded from unofficial WhatsApp groups or other social media channels and this could lead to successful claims of unlawful discrimination under the Equality Act 2010. Employers should make staff aware that they personally could be liable for bullying and harassment claims, and could also be exposed to civil or criminal complaints under the Protection from Harassment Act 1997.
Another major issue for employers to contend with is the loss of productivity with staff using WhatsApp for personal or unofficial work engagement reasons during work hours. Alongside this, if your organisation has a culture of messaging after hours and over weekends this could pave the way for successful claims in relation to stress and breach of the Working Time Regulations 1998.
How can employers protect their business?
All organisations need a comprehensive social media policy and contractual obligations regarding social media. This policy should set out the standards and examples of acceptable behaviour and language used in messaging, whether on devices supplied by the employer or the employees’ own devices, and this should be clearly communicated to all staff. Remember that out-of-hours activities can still be considered to be ‘in the course of employment’ so it is important to cover that in the policy.
Employers should also consider whether their mobile phone policies should set rules and expectations around when employees can access their mobile phones.
Where employers encourage employees to use WhatsApp for business purposes via the employee’s own device, employers should also have a bring-your-own-device policy (BYODP). A BYODP typically deals with the acceptable use of such devices, information security, privacy and the employer's right of access.
We recommend that all employers carry out an audit of the communication and social media channels being used by staff when reviewing existing policies or creating new ones and identify which are official and unofficial. Employers also need to be alert to new apps and trends and regularly review contracts and policies to ensure they continue to be fit for purpose.
Staff training will also be important to ensure employees fully understand the culture of the organisation and how this applies to the use of messaging and social media, both during their new starter induction as well as being part of regular refresher training for existing staff. Most people are unaware that the messages they send could be used as evidence in tribunals or in court as they are disposable. It's important staff are made aware of this.
Pam Loch is founder of Loch Associates Group