There are numerous issues to consider in this new working world. One such issue is employee’s use of the chat messaging platform, WhatsApp. With message “chats” having been printed and disclosed as evidence in Tribunal cases, such evidence, where relevant, is included in hearing bundles and is taken as seriously as contracts, emails and more formal documents even if the writers were not aware of the future significance of their text words (and emoji’s) at the time of pressing send.
In 2019 I had already been mindful of the challenges that the use of Whatsapp messaging could pose in Employment Tribunal proceedings. Message “chats” have been printed and disclosed as evidence in Tribunal cases that I have been involved with. Such evidence, where relevant, is included in hearing bundles and is taken as seriously as contracts, emails and more formal documents even if the writers were not aware of the future significance of their text words (and emoji’s) at the time of pressing send.
Similarly, in the Civil Courts there is a 2019 Court of Appeal judgment which provided that WhatsApp messages between team mates concerning a team move were crucial evidence for consideration in the case. The WhatsApp messages were even annexed to the judgment itself!
With the new ways of working in 2020, WhatsApp groups amongst employee workmates are de rigueur. These messaging groups provide an efficient and effective way of communicating with teams and uniting workmates living miles apart. They are used inter alia to assign work tasks, advise of whereabouts, and as a general “check-in/catch up” as to staff’s well-being. They can work very well. However the group chats can also be abused and include unsavoury content and can therefore pose a problem for the employer.
An issue concerning employers using evidence from WhatsApp chat groups in disciplinary proceedings has been recently considered in Scotland. The case, which was decided in the Scottish Inner House of the Court of Session this month, involved the question of whether an employer (the Police Service of Scotland) had breached the employee’s (a Police officer) right to privacy by using WhatsApp messages as grounds for disciplinary proceedings. The right to privacy argument relied on the provisions in Article 8 of the European Convention on Human Rights.
The initial judgment was appealed, and on appeal it was held that, in the circumstances of this case, the police officer could have no reasonable expectation of privacy in respect of the WhatsApp messages.
The case itself involved some stark facts and evidence. The WhatsApp group messages were considered by the employer to be “sexist and degrading, racist, anti-Semitic, homophobic, mocking of disability” and having “flagrant disregard for police procedures” by posting current crime scene photographs and a photograph of a female suspect in a cell. The extreme content of these messages along with the attributes of the senders and receivers being serving police officers, and the fact that the evidence from the messages had come about during the course of a legitimate police investigation, all supported the decision that there had been no breach of the Article 8 privacy right. It was also held that it was in the public interest to maintain a properly regulated police force which justified the intrusion to privacy.
Although this Scottish police case has extreme facts, it should be borne in mind and indeed there are other case decisions supporting the employer’s monitoring and using messages as evidence in disciplinary situations although care must be taken when doing so.
Employers who are considering the use of WhatsApp messaging in disciplinary proceedings must therefore strike a balance between treating the employee fairly and reasonably so there is no breach of the implied term of trust and confidence, whilst also ensuring that disciplinary allegations are thoroughly investigated with all relevant material. A further challenge is whether the message itself is from a purely personal communication as this could raise issues under data protection legislation if used by the employer.
Where the WhatsApp chats are encouraged by employers to ameliorate communication channels amongst employees it is the responsibility of line managers and senior staff to include themselves in the chat groups and direct and steer the use for legitimate (and non-offensive) work purposes. Updating employment policies to make clear how chat groups should be used will also support the employer’s ability to deal with any infringements fairly and lawfully.
