December 16, 2019
Whether to keep colleagues updated or to share a new idea, WhatsApp groups are increasingly becoming a go-to communication tool in the workplace. There are benefits to having such informal communication channels – they can be less hierarchical and improve cohesion within the team, as well as being a fast and easy way to communicate and share images. On the flip side, the lack of formality means that there are risks associated with them.
An employer can be vicariously liable for harassment or discriminatory comments made by its employees if the comments are made “in the course of employment”. This concept has been interpreted broadly by the Courts, for example, to include acts that have occurred during work social events. Communications in a work WhatsApp group could well meet the test of being made “in the course of employment” even if comments are made outside of working hours or using personal mobile telephones.
The legal definition of harassment under the Equality Act 2010 is that an individual is subject to unwanted conduct related to a protected characteristic, for example, disability, which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Even if the employee did not intend their comment to be offensive, if their colleague perceived it to be offensive and it was reasonable for the comment to have that effect by reference to the surrounding circumstances, then the test for harassment is met. Seemingly jovial comments or workplace banter over WhatsApp could therefore overstep the mark into harassment, which the employer would be vicariously liable for.
As well as risks of a claim for harassment against the employer, there could be risks of bullying, for instance, because an employee is being deliberately excluded from a WhatsApp group, and discrimination if an employee is treated less favourably because of a protected characteristic.
Such claims would be costly for the employer financially and from a reputational perspective. Inappropriate communications can also be damaging to the morale of the workforce.
Can an employer discipline an employee for comments made in WhatsApp group?
A recent Employment Tribunal case (Case v Tai Tarian), considered whether an employee could be fairly dismissed for having bullied a colleague who he excluded from a WhatsApp group. Mr Case set up the group chat with several colleagues, initially with the aim of keeping in touch with a colleague who was signed off work to undergo an operation. The WhatsApp group named itself the “Wolfpack”, a moniker from the film franchise “The Hangover”. Others were invited to join the group but one colleague was not included and Mr Case told the group that no one should add the colleague to the group.
Subsequently, Mr Case used the WhatsApp group to comment on the colleague making reference to her speech, weight and personal hygiene, and saying that she was ‘autistic’.
Eventually, a number of staff members told their manager of the existence of the WhatsApp group and the employer launched a disciplinary investigation and process, culminating in Mr Case’s dismissal for gross misconduct. The employer rejected the arguments that Mr Case’s behaviour did not constitute bullying as this was dialogue on a private WhatsApp group, and the Tribunal agreed with the employer. The Tribunal also found it did not matter that the colleague was not aware of the contents of the group messages.
If an employer receives a complaint about inappropriate communications on WhatsApp, it should investigate the issue promptly. If the complaint is found to be well-founded, the employer will need to consider whether there are sufficient grounds to commence a formal disciplinary process.
How can employers minimise the risk of claims in relation to WhatsApp groups?
Employers should put in place appropriate policies regarding harassment, bullying and social media and keep these policies regularly updated. It is prudent to list abusive or discriminatory conduct towards colleagues on social media (including WhatsApp) as misconduct in a disciplinary policy. The policy should include what sort of behaviour an employer expects from its employees and what will not be tolerated.
Staff training is also important both during induction and as part of regular refresher training in order to ensure that employees fully understand the culture of the employer and how this applies to the use of messaging and social media. This training should emphasise how important it is that employees are mindful of the messages that they send over all communication channels including WhatsApp.
All members of staff should be encouraged to speak up when they are concerned about a particular communication. Having a culture where employees feel they can speak out about behaviour they do not like will nip things in the bud. Matters are best dealt with at the earliest possible stage before any potential consequences can spread and magnify.