HR Magazine – Triple spike in WhatsApps used as evidence before tribunal

In 2019, 150 employment tribunals used WhatsApp messages as evidence; this rose to 427 by 2024. This reflected an increase in the number of employees using WhatsApp to send informal messages to colleagues while working from home, the analysis published today (October 23) showed.

“Traditionally, WhatsApp has been used mainly for social purposes, so using it for work-related communications can create blurred lines,” says Joanna Sutton, head of employment at Nockolds. HR magazine.

“Employees are likely to use WhatsApp in a more informal way than a more formal communication tool such as email, which could mean they are more likely to say something inappropriate in a WhatsApp group, especially if they are not in their normal place. of work, such as a home environment.”

Employers and employees can be legally responsible for inappropriate WhatsApp messages, Sutton explains.

She noted: “Employers and employees can be held personally liable for comments on messenger apps and, unlike work email accounts, these are not typically routinely monitored, making it more difficult to address issues before they escalate into claims of the tribunal.”

Read more: PwC will intensify employee monitoring

Excluding someone from a WhatsApp group could be grounds for a lawsuit, Sutton said. In 2023, Mr M Brosnan’s court case against Caolo found that an employee was discriminated against when he was excluded from an employee WhatsApp group while on long-term illness.

Employers should be on the lookout for cases of sexual harassment on private messaging platforms before the Worker Protection Act comes into force on October 26, as well as other forms of harassment for which employers could be held liable, said Bar Huberman, HR Strategy and Practice. manager at HR analytics provider Brightmine.

“A clearly articulated policy on the use of social media and messaging apps should remind staff of the standards of behavior expected of them in all work-related communications, and of the consequences of online misconduct,” says Huberman. HR magazine.

“The policy should not be left to collect dust, it should be communicated effectively to new starters and reinforced regularly, for example through training and communication with senior leadership. Recognition that employees have read and understood the policy can be captured through an LMS or HRIS.”

Read more: How can HR deal with social media auditing?

HR should ensure their policies stay up to date with the platforms employees use, Sutton advised.

“Regularly checking the communications and social media channels used by staff when reviewing existing policies or creating new policies, and being alert to new apps and the way they are used, will help reduce risks” , she added.

“Employers who encourage their workforce to use personal devices for work should have a ‘bring-your-own-device’ policy in place, which clearly sets out expectations around conduct, data security and privacy, especially in relation to the use of WhatsApp.

“At a minimum, employers should include WhatsApp use for work purposes in their existing communications policies, as it is likely that employees will use personal devices for work purposes whether they are formally authorized to do so or not.”

Employees found to have violated the policy must be subject to a disciplinary process, Huberman explained.

“As with all cases of inappropriate behavior, addressing misconduct through messaging apps is critical,” she said. “The disciplinary process must be followed and action taken that is appropriate to the type of misconduct and applied consistently.”