In 2019, 150 employment tribunals used WhatsApp messages as evidence; this increased to 427 in 2024. This reflected an increase in employees using WhatsApp to send informal messages to colleagues while working from home, the analysis, published today (23 October), suggested.
“Traditionally WhatsApp has predominantly been used for social purposes, so its use for work-related communications can create blurred lines,” Joanna Sutton, head of employment at Nockolds, told HR magazine.
“Employees are likely to use WhatsApp in a more casual manner than they would a more formal means of communications such as email, which may mean they are more likely to say something inappropriate on a WhatsApp group, particularly if they are not in their normal place of work, such as a domestic setting.”
Employers and employees could be legally responsible for inappropriate WhatsApp messages, Sutton explained.
She noted: “Employers and employees can be held personally liable for comments made on messenger apps and, unlike work email accounts, these tend not to be routinely monitored, which makes it harder to deal with problems before they escalate to tribunal claims.”
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Excluding someone from a WhatsApp group could be a reason for a tribunal claim, Sutton said. In 2023, the tribunal case of Mr M Brosnan v Caolo ruled that an employee was discriminated against when he was excluded from an employee WhatsApp group while on long-term sick leave.
Employers should be wary of cases of sexual harassment on private messaging platforms ahead of the Worker Protection Act coming in to force on 26 October, as well as other forms of harassment that employers could be held liable for, said Bar Huberman, HR strategy and practice manager at HR analytics provider Brightmine.
“A clearly worded policy on the use of social media and messaging apps should remind staff of the standards of behaviour expected of them in all work-related communications, and the consequences of online misconduct,” Huberman told HR magazine.
“The policy should not be left to gather dust, it should be effectively communicated to new starters and reinforced regularly, for example through training and senior leadership communications. Acknowledgment that employees have read and understood the policy can be captured via an LMS or HRIS.”
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HR should ensure that their policy remains up to date with the platforms employees are using, Sutton advised.
“Regularly auditing the communication and social media channels being used by staff when reviewing existing policies or creating new ones, and being alert to new apps and how they are used, will help reduce risks,” she added.
“Employers that encourage staff to use personal devices for work should adopt a ‘bring-your-own-device’ policy, which clearly sets out expectations around conduct, data security and privacy, particularly in respect of use of WhatsApp.
“As a minimum, employers should cover WhatsApp usage for work purposes in their existing communications policies, as it is likely that employees will be using personal devices for work purposes, whether they are formally authorised to or not.”
Employees found to have breached the policy should be subjected to a disciplinary procedure, Huberman explained.
“As with any instances of inappropriate behaviour, it is vital to deal with misconduct via messaging apps,” she said. “The disciplinary procedure should be followed, and action taken that is appropriate to the type of misconduct and applied consistently.”
