The use of work WhatsApp groups has grown exponentially in recent years, particularly since the proliferation of remote and hybrid working.
As a mobile messaging app, WhatsApp offers teams an easy way to stay in touch, network and share ideas. It also allows employees to message each other discreetly, often without employers being aware. But this can cause problems if employees complain, or raise grievances about bullying, harassment or degrading treatment within work WhatsApp groups.
The informality of WhatsApp chat groups, as well as the private nature of the communications, can also lead to problems in the workplace and in turn expose employers to the potential risk of legal claims.
Work Whatsapp Groups: offensive messages
One of the most common problems that can arise is when content is shared on a work WhatsApp group that others in the group find offensive. Inappropriate material that is of a discriminatory nature can lead to claims of unlawful harassment and/or discrimination unless an employer acts quickly and decisively once made aware of the situation. Another issue that can frequently arise is that of bullying – where an employee engages in abusive behaviour towards another via WhatsApp messages or by deliberately excluding them from a workplace WhatsApp group. Such behaviour, if allowed to continue unchecked can lead to claims of harassment or constructive dismissal. It is important staff are aware when ‘banter’ goes too far, and the consequences of failing to meet this standard of conduct.
Other risks associated with the informal nature of WhatsApp communications include inadvertently sharing confidential information or personal information. This can quite easily happen in a large group where an assumption is made that something is common knowledge at work, whereas the information may only have been intended to be known by a small group of people.
The likelihood is that thousands of WhatsApp or text messages are sent every day without employers being aware. It is often difficult for employers to police their employees during working time, let alone outside of working hours.
Any measures seeking to prevent employees from communicating with each other through WhatsApp are likely to be seen as overbearing, or even oppressive. This could have a damaging effect on workplace relations.
An employer’s best option for dealing with the dangers of WhatsApp is to have a sensible policy in place that sets out guidelines, expectations and the potential consequences of breaching the rules. For example, any employee who engages in abusive or discriminatory conduct towards colleagues on WhatsApp could face disciplinary action. This could tie into any existing social media policy that an employer has in place.
Can Employers take disciplinary action for inappropriate WhatsApp activity?
If an employee is approached about inappropriate use of WhatsApp, there are two points commonly relied on in defence of their actions. First, they may argue that any offending comments took place outside of working hours and are therefore outside the course of employment.
Second, WhatsApp differs from other forms of social media such as Facebook or Twitter in that comments cannot be seen publicly. Instead, they can only be viewed by individuals who are part of a particular WhatsApp group.
Each individual case will differ. Employers are likely to have a strong case for taking disciplinary action where employees specifically set up work related WhatsApp groups designed to abuse or belittle other employees. Employers may wish to take robust action in these circumstances, such as issuing a final warning or even dismissing the employee.
In any event, as with all workplace disciplinary and conduct matters, employers are under a legal obligation to treat employees fairly. This means following a lawful disciplinary procedure, including an internal investigation, before deciding if disciplinary action is justified.
Can employers use WhatsApp messages in workplace investigations?
Team members should be mindful that what they write in work WhatsApp groups (during and out of work time) could be used as evidence in workplace investigations.
Under Article 8 of the Human Rights Act 1998, everyone is entitled to privacy, however there is a fine line which overlaps in cases of serious circumstances.
There have been many successful outcomes from being able to use Whatsapp messages as part of ongoing investigations and disciplinary hearings.
In Case v Tai Tarian 2019, Case was dismissed for gross misconduct for bullying an autistic female work colleague on WhatsApp. He had made derogatory remarks about her weight, personal hygiene and her speech. At tribunal, Judge Rhian Brace concluded that the dismissal was fair based on his appalling views of his female colleague.
In Garamukanwa v United Kingdom the employer was successful in dismissing the employee for harassment. He had sent personal intimate emails and photos from his iPhone to a work colleague with whom he had a relationship with. He insisted that he had the right to privacy on this matter. In light of the material that he had sent to his former work colleague, tribunal disagreed with his argument and concurred with the employer that the termination of his employment still stood.
Again, each case will turn on its own facts, but taking advice on the circumstances can help to ensure you
Managing risks for employers
Unlike email and internet usage, the employer cannot monitor what is said or shared in WhatsApp workplace groups. WhatsApp accounts are private as they are usually set up on personal mobile phones, and the messages can only be viewed by individuals who are part of a particular WhatsApp group. There may be any number of Whatsapp groups in a workplace at any one time that the employer will have no clue about – until, of course, a problem occurs.
One solution could be to impose an outright ban on workplace WhatsApp groups, but it would be impossible enforce and would be a disaster for employer/employee relations. No employer wants staff morale to plummet in this climate and with more and more employees working from home, a friendly “hi, how’s your day going” via WhatsApp from a colleague can make all the difference to an otherwise solitary day with only a cat for company.
The following best practice guidance can help employers manage the legal risk of workplace WhatsApp groups.
Review & update your social media policy
It would be naive to suggest that employers can actually stop or possibly even limit this type of conduct.
The better solution is to devise a workplace policy, similar to an email and internet usage policy, setting out guidelines for what is acceptable and what is not when communicating with colleagues via WhatsApp.
Having a sensible and balanced policy in relation to WhatsApp and group text messaging is one way that employers can try to manage this issue. A policy could include examples of what is considered acceptable behaviour. As mentioned above, this could tie in with existing social media policy. With a policy in place, employers can often act with a firmer hand when it comes to taking disciplinary action. Employers may also consider sending warning notices to employees where any inappropriate behaviour comes to light.
A comprehensive policy will provide examples of what type of content and/or behaviour is unacceptable. It will also explain the risks of inappropriate use of WhatsApp for the individual, including a warning that any breach of the policy by an employee is likely to lead to disciplinary action up to and including dismissal.
Workplace training
Of course, it’s not enough to just have a policy – your staff need to be aware of it too. Send it out by email to all staff and ask them to respond to let you know they have read it. The most beautifully drafted policy will be of absolutely no use tucked in a file on a dusty shelf in the office, wedged between an old manual and a dry cactus plant.
Having a policy is not going to prevent any issues from occurring in the future in the workplace, but it will help particularly if an employer is contemplating disciplinary action against an employee who has been engaging in offensive or discriminatory behaviour via Whatsapp whilst at work. You can envisage all sorts of creative arguments being used by an employee in defence of their actions – “those messages were private” being a common one and “but I sent it outside work” being another – but having a clear policy in place should help rebut these and support the employer’s case.
Above all, what is important is to communicate clearly with staff about what behaviour is and is not acceptable in the workplace – however that behaviour manifests itself – and to act quickly and fairly once an issue is brought to your attention.
WhatsApp work group user agreement
Following training on the company social media policy, it is advisable to request that employees sign a user agreement to confirm their understanding of the group user rules and expectations of conduct. This could include:
At the outset employees should also consent to being put into a WhatsApp Group as their telephone number will be visible to all within the group, and personal telephone numbers cannot be communicated without consent.
- This is a workplace group. It has been set up by [INSERT], who will act as administrator. They are not “moderators”.
- This group is intended as a convenient way to distribute information to colleagues quickly and efficiently and for colleagues to communicate easily with each other regarding work matters
- Such a group is set up in a spirit of informal communication amongst a group of persons sharing the same common interest. In keeping with that spirit, it is not the intention that there ought to be an overly legalistic attitude towards its operation. However, the following ought to be adhered to:
- The group is not to be used to discuss non-work related issues.
- The group should not be used to express personal opinions or post private messages.
- Any opinions expressed are the opinions of individual members. Group administrators are not responsible for any comments posted by individual members of the group.
- It is not necessary to respond to every post unless it is requested e.g. RSVP. When a busy user gets too many notifications, there is the chance that they will turn off the notifications, which undermines the efficiency of the facility.
- If your message is not relevant to the majority of group members, please message the person directly rather than the entire group.
- Inappropriate posts include using inappropriate language, insulting messages, voicing grievances with the workplace or with individual members of the group.
- No comments should be made regarding colleagues, management, the Board, work policies or events.
- In the event that there is a breach of any of the rules, the group administrator reserves the right to remove the transgressor from the group.
- By participating in the this WhatsApp Group, you agree to these group rules.
- Participation is not obligatory and if you join, you have the option of leaving. We would hope that all participants can see the usefulness of the group and will cooperative accordingly.
- Respect everyone’s privacy – being part of this group requires mutual trust
Need Assistance?
DavidsonMorris’ HR specialists and employment lawyers support employers to manage the legal risk of workplace social media, including guidance on relevant HR policies and support with training for managers and personnel. Contact us for specialist advice.
Work WhatsApp Group FAQs
Is it legal to use WhatsApp for work communication in the UK?
It is legal to use WhatsApp for work communication in the UK, but employers must ensure they comply with data protection regulations, such as GDPR. It’s important to inform employees about how their data is handled and ensure that group chats are used appropriately.
How can I ensure my Work WhatsApp Group is GDPR-compliant?
To ensure GDPR compliance, make sure that any personal data shared within the group is done so with consent and for legitimate business purposes. Inform employees about data usage, and avoid sharing sensitive information that could compromise privacy. It’s also advisable to set clear guidelines on what can and cannot be shared in the group.
Can I add employees to a Work WhatsApp Group without their consent?
It’s best practice to seek consent before adding employees to a Work WhatsApp Group. Although adding someone to a group might seem harmless, it’s important to respect privacy and ensure that employees are comfortable being included in such communications.
What should I do if an employee sends inappropriate messages in the group?
If an employee sends inappropriate messages, it’s important to address the issue promptly. Remind them of the group’s guidelines and take appropriate action based on your company’s policies. In serious cases, you may need to escalate the matter to HR for further action.
How can I manage work-life balance with a Work WhatsApp Group?
To help maintain a healthy work-life balance, set clear expectations about when it’s appropriate to send messages in the group. Encourage employees to mute notifications outside of working hours and make it clear that there’s no obligation to respond to messages immediately.
What if an employee doesn’t want to join the Work WhatsApp Group?
If an employee is uncomfortable joining the Work WhatsApp Group, it’s important to respect their decision. Offer alternative communication methods, such as email or other approved platforms, to ensure they remain informed and included without feeling pressured.
How can I ensure messages aren’t missed in the Work WhatsApp Group?
To prevent important messages from being overlooked, consider setting up group announcements where only admins can post. This ensures that crucial information isn’t lost in the flow of everyday conversation. Regularly remind employees to check the group for updates.
Can I monitor conversations in the Work WhatsApp Group?
While you can monitor the content shared in the group, it’s important to do so with transparency and respect for privacy. Make sure that employees are aware of any monitoring practices, and limit this to ensuring compliance with company policies rather than infringing on personal conversations.
Glossary
| Term | Definition |
|---|---|
| WhatsApp Group | A feature in WhatsApp that allows multiple users to communicate simultaneously in a single chat, enabling group discussions and information sharing. |
| GDPR | General Data Protection Regulation; a legal framework that sets guidelines for the collection and processing of personal data within the European Union, including the UK. |
| Data Protection | The practice of safeguarding personal data from unauthorised access, use, or disclosure, particularly important under GDPR compliance in the UK. |
| Work-Life Balance | The equilibrium between personal life and work commitments, often discussed in the context of managing after-hours communication in work settings. |
| Admin Rights | Permissions granted to a user in a WhatsApp Group that allow them to manage group settings, add or remove members, and control other administrative functions. |
| Encryption | A method of protecting information by transforming it into an unreadable format, which can only be decrypted by those with access to a decryption key. |
| Consent | Permission given by an individual to process their personal data or include them in a communication platform like a WhatsApp Group. |
| Sensitive Information | Data that is confidential and requires protection, such as personal details, financial information, or business secrets, which should not be shared in insecure channels. |
| Communication Etiquette | Guidelines and standards for respectful and professional communication within a work environment, including in digital platforms like WhatsApp. |
| Group Announcements | A feature in WhatsApp Groups that restricts posting to group admins only, ensuring that important messages are highlighted and not lost in casual conversations. |
| Data Usage | The manner in which collected data is handled, stored, and shared, particularly relevant in ensuring compliance with GDPR in the UK. |
| Monitoring Practices | Methods used by employers to oversee communications within a work platform, ensuring adherence to company policies while respecting employee privacy. |
| Alternative Communication Methods | Other channels of communication used in place of WhatsApp, such as email or dedicated business communication tools like Microsoft Teams or Slack. |
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
