“If you can’t say something nice don’t say nothing at all” (or at least don’t say it on WhatsApp)

28th June 2024

By Kevin McKenna, Partner and Head of Employment

It’s the timeless advice given by Thumper in the 1942 film “Bambi”.  We can forgive the grammatical inaccuracy of the double negative – it came from a talking rabbit, after all, but the principle is still a good one.

The increasing use of WhatsApp groups in the workplace has brought significant implications for employment law in the UK.  The rapid adoption of WhatsApp groups is doubtless down to the apps ease of use for quick, informal written communication and the anytime ability to communicate simultaneously with large or curated groups of people or on an individual basis, allowing also for photos, videos and voice notes to be shared.  And as with so many things in life, its strengths are also its weaknesses, at least when viewed through the prism of employment law.

It’s that ability to send a quick, informal message to a colleague (maybe after a few drinks one evening) which creates the perfect conditions for what might read like harassment and inappropriate behaviour by the time 9am rolls around the following day.  WhatsApp groups can blur the lines between professional and personal communication, sometimes leading to unprofessional conduct. Instances of harassment, bullying, or discriminatory comments can create a hostile work environment, potentially leading to legal action under the Equality Act 2010.  For potential claimants, social media has the advantage of being an excellent form of evidence.  Unlike an off-the-cuff spoken comment, social media comments are perfectly and unequivocally preserved, handily time and date-stamped and directly attributable to their author.

There are also issues around data protection and privacy. Under the General Data Protection Regulation (GDPR), employers are responsible for ensuring that any personal data shared within WhatsApp groups is protected. This includes maintaining confidentiality and securing the information against unauthorized access.

The use of WhatsApp can also impact working hours and the right to disconnect. With employees often receiving messages outside of regular working hours, issues related to overtime pay and work-life balance arise.

Employers must ensure that employees are aware of these obligations and establish clear policies regarding the sharing of sensitive information.  Employers should establish clear boundaries regarding out-of-hours communication to ensure compliance with the Working Time Regulations 1998 and to protect employees’ rights to rest periods. Employers must ensure that employees are aware of these obligations and establish clear policies regarding the sharing of sensitive information.

Employers and employees should be mindful that messages exchanged on these platforms can be subject to scrutiny in legal proceedings, emphasising the need for professionalism and caution in all workplace communications.  So, if you are fed up of lawyers telling you to amend your policies and implement training to cover all of the various regulations which work communications are governed by, you could just train them of Thumper’s Law, it was good enough for Bambi.

If you would like to speak to a member of our team, please call on 0161 832 3434 or email info@kuits.com.

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