What’s up with WhatsApp in the workplace?

Robert Shore: Hello, and welcome to the Brightmine podcast, formerly known as the XpertHR podcast. Brightmine is a leading provider of people data, analytics and insight, offering employment law expertise, comprehensive HR resources and reward data to meet every HR and organisational challenge and opportunity. You can find us any time of the day or night at www.brightmine.com.

Hello everyone. My name is Robert Shore, and today we’re going to be talking about WhatsApp in the workplace. Well, we’re going to be talking more generally about the use of informal messaging platforms, and this is because the material posted on them is turning up as evidence in employment tribunals. What should employers do about that? Should they ban phones at work? That’s probably not a reasonable suggestion, but there are certainly issues for organisations to be thinking about, and so we’re going to do that today.

And to do this I am delighted to be joined today by Sam Dickinson, an employment lawyer and partner at Mayo Wynne Baxter, a leading firm in Sussex and soon also in Surrey. Sam, hello.

Sam Dickinson: Hello, Robert. Thanks for having me.

Robert Shore: So, we’re going to be talking about informal messaging platforms. First of all, what do we mean by ‘informal platforms’?

Sam Dickinson: Yes. Well as you said, WhatsApp, Messenger, Telegram, even Signal. All of these platforms, these digital communication tools that we tend to use in our day-to-day personal lives, they’re becoming more and more frequent for employees. Employees can quickly chat with them, share information without the formality that often comes along with emails and meetings. So quick exchanges, team collaborations, even social interactions within the work context we’re seeing more and more use of WhatsApp for those purposes.

Robert Shore: This has been turning up at the employment tribunal a bit, hasn’t it? Why is it becoming a bit of an issue?

Sam Dickinson: Well, in the UK at least, these informal messaging platforms are becoming more and more popular in the workplace, especially since the pandemic and the shift to remote and hybrid working environments. More often than not, we all use these platforms on our personal mobiles anyway for our friends and our family, so having those work communications in the same place can be helpful. It offers speed and flexibility, and a more conversational style of communication than when we use our emails.

I think because they’re fast and easy to use and less formal, employers are using them more and more. We’re getting immediate responses when we use a WhatsApp message, aren’t we? It enables quicker decision-making and problem-solving. And in a way, they are helpful. They can improve team culture. They foster a more sort of approachable environment and help employees stay connected. Whether it’s social events that are being planned, sharing a funny meme, the informal communications foster this sense of belonging and community, and that can lead to improved collaboration and morale. And using them for work-related matters, for example employers that might have a shift system and at short notice they need to find someone to cover a shift where an employee is unwell, the quickest and easiest way to do that is often to send a quick WhatsApp rather than log into your emails and wait for people to read their emails.

Robert Shore: It’s no surprise that people are using it in this way, and it could almost have been invented for this purpose, couldn’t it? But there are some issues and even problems that arise as a result.

Sam Dickinson: Yes. Yes, you’re right. There’s a number of risks and challenges, really, in using these platforms.

So, firstly we need to think about record-keeping, data security and privacy concerns. Now, we know from things we’ve read in the press involving a lot of politicians and footballers’ wives that these WhatsApp messages can be easily deleted, phones lost, and with all that the communications are gone. There’s no record of what was said or in what context. And in fact, last year Morgan Stanley were fined almost £6 million after it was found that energy traders were discussing business deals over WhatsApp on their private phones. Now, the regulator there said that the bank had breached rules that require firms to record messages linked to energy trading, and although the bank had policies in place that were meant to prohibit staff from using WhatsApp, the bank didn’t take reasonable steps to ensure compliance with its own policies, hence that massive fine. And we’ve also got to remember that when we use informal messaging platforms for work-related matters, we’re sometimes exchanging sensitive information, financial data, internal decisions.

If these platforms aren’t properly secured then there’s a risk of data leaks or even cyber attacks. The ICO last year investigated an NHS Trust and found that personal information – the names, phone numbers and addresses of patients – had been shared on over 500 occasions by a group of around 25, 26 staff members. Not only was it information around names and phone numbers but there was also clinical information shared via WhatsApp. The WhatsApp group had been set up so that staff could communicate during the pandemic but it had continued and the Trust hadn’t been aware of that.

Now, to make matters worse in that case, a non-NHS employee was inadvertently invited to the group, so they then had access to this highly confidential data. The ICO didn’t fine the health board in that case because they were aware that that would only take money away from patient care, but private sector companies are unlikely to be as lucky as that if they find themselves in this situation.

And as you mentioned in the introduction, Robert, the messages that people are sending are turning up in tribunal cases more and more. A London law firm recently did some research and noted that in 2019 150 employment tribunal cases mentioned WhatsApp messages and used those as evidence. In the last twelve months it jumped to 427 cases. And we’ll only see an increase in this over the coming years.

We’ve also got to remember that we’ll see more and more data subject access requests over the coming years, and if personal phones are being used for work-related reasons, be it on WhatsApp or any other platform, then that brings those personal phones potentially within the scope of a data subject access request. All HR professionals and business owners listening will know how onerous a data subject access request can be, and if we have to mine our staff’s personal phones for relevant data as well, it’s just going to add to that headache.

Robert Shore: Sam, can you talk us through a couple of cases?

Sam Dickinson: Of course, yes. These were all in the last twelve months. A case of Abdi vs Deltec International Courier Ltd that has been in the news just recently where a black woman of Somali origin was present in the office when an argument broke out between two of her colleagues, during which racist comments were made. And she later saw WhatsApp chats in a group that she was not a member of. She purposely had not been invited to a work group. And she saw these WhatsApp chats and they contained offensive and discriminatory remarks about race and religion and gender.

The employer did discipline some of the employees involved in this group chat. Some were dismissed even, others given final written warnings. But despite these steps the employee still felt that those who hadn’t been dismissed should have been, so she resigned with immediate effect. She brought a claim of harassment as well as constructive unfair dismissal and, quite understandably, was successful in her claims. Her compensation was around £25,000.

Robert Shore: So can I just ask there for clarification, the fact of there being a WhatsApp record otherwise changed the case?

Sam Dickinson: Well, it did make it worse. And it showed a pattern of behaviour and it showed that the employer wasn’t taking any steps to prevent discrimination in the workplace. It made it, the compensation, higher as well because it wasn’t a one-off event, a one-off argument in which tempers were necessarily raised. So yes, it did make it worse, and it led, likely led, to the compensation being the level that it was. There was a case involving Mr Brosnan and his employer. Again this was just last year. He argued he’d been victimized when he was deliberately excluded from a WhatsApp group. Now that was only part of his case. The compensation awarded there was £100,000. But the WhatsApp element of it was only a small group. But leaving employees out of a WhatsApp group when the rest of the team is in there can be victimization, which is exactly what Mr Brosnan successfully claimed.

And it’s not risk-free for employees either. We saw a case in the King’s Bench Division last year where the claimant was dismissed for gross misconduct and, in defending her unfair dismissal and sex discrimination case, the employer submitted a number of WhatsApp messages that they had found on her work laptop when she’d returned it to them. And as a consequence of those messages her evidence was undermined and she lost her case. It can work both ways, and employees and employers both need to be alive to these issues and make sure they’re taking steps to avoid harassment and discrimination online as well as in person.

Robert Shore: Is there evidence that WhatsApp is making behaviour worse in any way or there’s a different kind of behaviour there from actually, you know, it just serving as a record of things that people do anyway that they shouldn’t be doing?

Sam Dickinson: Even before WhatsApp we see that people seem to be less cautious when they’re online, whether they’re commenting on a blog or an article in the paper, this more casual way of communication does often make people put their guard down and people tend to write things that they would never say face-to-face. There’s something about having a computer or a phone between you and the recipient of your comment that often does seem to make people rude and less aware. They say things that they would never say face-to-face.

Robert Shore: I have certainly witnessed that myself. Obviously not in a workplace group. And obviously with the Covid enquiry. A lot of fairly extraordinary messages there. It’s hard to believe that people would have said some of those things out loud.

Sam Dickinson: We always say that, you know, you should never put anything in writing that you wouldn’t want a judge to read out to you in court. That’s very good advice for all of us.

Robert Shore: Are there issues around consent with these groups as well?

Sam Dickinson: Yes. Yes, there are. People might join a group thinking they’re having a discussion about one thing and before we know it we’re having a discussion about something else that somebody hasn’t agreed to. Information is shared that shouldn’t be shared. And people can be joined to these groups without wanting to be joined. I mean, employers should always ask if an employee is happy for their number to be shared with others, to be joined to a group, but it doesn’t always happen. I’m often seeing it happen as a matter of course in someone’s induction that their number is automatically shared. And that also can be an issue at the end of the employment relationship because I’ve certainly seen a couple of cases recently where employees have left the business but the administrator of the work WhatsApp group has forgotten to remove them from that group, and then that leads to all sorts of issues when they see information that they shouldn’t have seen because they’re no longer
an employee.

Robert Shore: So, basically we have these informal platforms but actually you need to think about them in a fairly formal way if you’re going to use them, that actually you need to be really structured in your thinking?

Sam Dickinson: Yeah. I mean, an outright ban on these platforms isn’t always going to be practical. I accept that. It’s worth considering but yes, we need to have some sort of formality around the platforms that we are going to allow our staff to use, and also outline in policies what acceptable use is. Data security protocols, how to handle sensitive information. Having clear policies is essential to ensure everybody understands the dos and the don’ts within formal messaging platforms.

Robert Shore: Now, I can see…I’m opening WhatsApp on my phone here and it says, ‘Messages and calls are end-to-end encrypted. No one outside of this chat, not even WhatsApp, can read or listen to them.’ So presumably people are taking screenshots?

Sam Dickinson: Well, that’s exactly what’s happening. Screenshots are being taken, which then doesn’t show the entire context of the conversations, and that’s another risk. But yes, screenshots are taken and we’re seeing screenshots turn up in bundles before the tribunal. And also audio recordings. It’s fairly straightforward to make an audio recording of a WhatsApp call.

Robert Shore: If nobody takes a screenshot, is it possible for a court to go to WhatsApp and say, you know, ‘We need the record of this’? Is it stored somewhere?

Sam Dickinson: I don’t think that would happen in the employment tribunal because I think the costs would be prohibitive of doing that. I think what’s more likely to happen is that when the solicitor explains to their client about the rules of disclosure, they should be saying that when we disclose documents, documents in this context is very widely interpreted. So that does mean messages. It does mean it’s not just your files, your papers, your personnel file. It does mean messages, audio and text and WhatsApp and Messenger or any other platform.

Robert Shore: Now obviously people find genuine value in being able to communicate in this way in a work context. So you’re talking about people who are not necessarily sitting at a computer all day. And often, say with shift work, we need somebody to fill in quickly. Are there other platforms that are better safeguarded, that are a better option from an employer point of view and an employee point of view?

Sam Dickinson: I’m not a tech expert and listeners should take advice on this subject from those who are. But I understand there are safer platforms out there. Platforms like Microsoft Teams, Slack, they’re all designed with enterprise-level security in mind. So they offer features like encryption, access control and also, crucially, data retention
settings. Encryption is one of the most important features for ensuring privacy on these messaging platforms, and these businessgrade platforms that I mentioned will encrypt those, archive them and retain them for compliance purposes, so they can be stored whilst maintaining confidentiality and security.

They also link in with your other business tools so they can enhance productivity in the workplace, which is helpful. These personal tools, while convenient, they don’t provide that same level of control.

However, even if employers are choosing to use these, it’s crucially important that clear protocols are established and communicated to staff about how they should be used.

Robert Shore: Yeah. I mean, as you say, possibly with something like Teams, maybe you do think of it as a more formal platform and therefore are less likely to err in the way that you express yourself?

Sam Dickinson: I agree entirely. It’s seen more as a business tool than a personal tool. Not everybody will have Teams on their phone but, you know, I imagine that at least 90% of the population will have WhatsApp on theirs. So yes, your brain almost switches into work mode when you’re looking at something like Teams or Google chat, than you might do with WhatsApp or Messenger, yeah.

Robert Shore: So, I think we said that we would offer some pointers on good practice.

Sam Dickinson: Policies, as all HR professionals know, policies are only the starting point, right? We have our policies that are very clear on the dos and don’ts of using these platforms and what platforms can be used, and guidelines around professional communication. Companies need to offer training sessions, though, as well. We need to cover these policies and explain what they mean, and explain best practice for using these tools securely and professionally. We might include examples of appropriate and inappropriate use, how to avoid sharing of sensitive data, and how to use the security features that any platform might have.

Of course, one doesn’t want to do training just at induction and then leave the employees to it. We need regular updates and refresher courses, especially because technology is so advanced. It’s developing every day, something new comes out, a new way of communication appears that employers might feel behind the curve. So we need these regular refresher courses and updates on what the risks are.

But I would say the most important thing, Robert, is the day-to-day, you know. Managers, leaders, they have to absolutely lead by example and reinforce best practice when using informal messaging platforms themselves. They need to monitor usage to some extent.

Nobody likes Big Brother looking over their shoulder but part of the manager’s role, the employer’s role, is to address any misuse and inappropriate behaviour and to do so promptly.

Robert Shore: How do you monitor it? What do you think? Tapping somebody on the shoulder and saying, ‘Have you been using WhatsApp? Or…? How do you do that?

Sam Dickinson: Well, the practical advice would be that somebody senior, a manager, should be in the group as well, and then they can review it in real-time, can’t they? And as soon as they see something that’s inappropriate then they need to call the person out on it.

And making a safe space in the workplace so that staff feel able to go to their manager if they’ve seen something that is unacceptable. It sort of links in with the general bullying and harassment training. Staff need to understand that bullying and harassment online on WhatsApp will be treated as a disciplinary matter in the same way as any other type of bullying and harassment will be. So having somebody senior in the group, a manager in the group, is the best way to monitor it.

Employers need to make it clear to their staff that there is no expectation of privacy when they’re using these informal messaging platforms for work-related reasons, even if they’re accessing these platforms through their personal mobile phones.

Robert Shore: And even if it’s just a conversation between two people, rather than actually…who may know one another outside work as well?

Sam Dickinson: If the messages are about personal plans and, you know, meeting up at the weekend and nothing work-related, then that is not something I would expect an employer to be monitoring. It’s more the group WhatsApps where everybody who is on the night shift has access to a group platform. Those are the message platforms where there’s no expectation of privacy, and they’re the ones where more
personal communications leak into those conversations, those groups that have been set up originally just for work-related discussions.

Robert Shore: That’s brilliant, Sam. So let me ask you about the future. Let’s look into the future. We’re doing a lot especially in relation to AI. What do foresee?

Sam Dickinson: Mm, yes. We are seeing AI and automation features coming more and more into the workplace. And they can be integrated. These things can help us improve productivity and help us maintain data privacy. With that, there will be increased pressure on businesses to adopt more secure and compliant tools. We’re also going to see a development of data protection laws such as the GDPR, which
means companies are going to need to be even stricter about the security of their messaging platforms and what staff share on those platforms, particularly around clients and customers. Now, this isn’t anything to be scared of. It was going to happen anyway as remote and hybrid working continues to grow. But it’s just something that employers need to be aware of and get their house in order now, really, implementing clearer policies and investing in those securer tools that will give both the flexibility employees want while also protecting sensitive data.

Robert Shore: Well, there we go. I think that’s a wonderful review you’ve offered of things that have happened across, say, the last five years where things have been galloping forward, haven’t they, and what we’re to look to in the future.

It just remains really for me to thank you, Sam.

Sam Dickinson: Well, you’re very welcome.

Robert Shore: And of course we have some supporting materials on the Brightmine website and I’ll put links to those in the show notes. Until next time.