What's up with WhatsApp? Why employers should take care with instant messaging


Barely a week goes by without someone in the public eye being hauled over the coals as a result of their WhatsApp messages.   From glamorous film stars to rather less glamorous former Cabinet ministers, "private" messages have a way of seeing the light.  Because WhatsApp offers such a quick and easy way to communicate, people are often very unguarded when they use it.  This can cause problems not only for those individuals, but potentially for their employers.   

We have seen a huge increase in WhatsApp being used for day-to-day management of staff, particularly in retail, leisure and hospitality businesses.  In many cases, this developed during COVID-19 as a way of keeping in touch informally with staff, but has become the standard way to communicate about shift times, sickness absence and other staff management issues.  Many employers do little to discourage this.   However, in our experience this approach can create significant risks for employers.

Some key issues are:

Data protection and privacy:  WhatApp's terms of business state that it is to be used only for personal communications, not business purposes, so organisations that permit or encourage its use are condoning a breach of those terms.  It's almost impossible to comply with data protection requirements while using WhatsApp for staff management purposes, as the employer ultimately has no control over WhatsApp's handling of the data. This is particularly serious in relation to special category data, such as information about health.  WhatsApp also makes it easy to share information (whether deliberately or inadvertently) and this can result in complaints about unfair treatment and invasion of privacy - in some cases, this could even be the basis for a constructive unfair dismissal claim. 

Litigation:  People assume that WhatsApp messages will remain private - and because it encourages informal, instant communication, many people are more sarcastic, blunt or even offensive than they would be in face-to-face communication.   This can be a fertile source of claims - and employers are likely to be vicariously liable for discriminatory or harassing comments made by WhatsApp if it's being used for staff management purposes.  Many employers will have experienced the heart-sinking feeling of an unhelpful "off the cuff" email being disclosed in a threatened or actual Employment Tribunal claim.   WhatsApp messages are no better, and there is arguably more scope for offence  - predictive text, emoji misunderstandings and inadvertent forwarding are accidents waiting to happen. 

Record-keeping and oversight:  Another key risk for employers is that they have no control over communications outside of their own systems.  WhatsApp messages can easily be deleted by the user and phones can be lost, meaning that an employer could be left with no record of key communications in the event of a grievance or dispute.   It also makes it much more difficult for employers to monitor communications for potential wrongdoing. 

There's nothing wrong with staff using WhatsApp for purely personal communications, but employers should discourage staff from using it for communicating about workplace matters. Stick to the kitten videos. 

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