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Employee WhatsApp Communications – the importance of HR policies and training

In the wake of the COVID-19 pandemic and our response to minimising social contact and travel, participation in WhatsApp group chats has soared. This has inevitably included work colleagues using the social messaging platform to keep up morale and a sense of team spirit in the absence of the usual level of face to face contact.

Whilst such team chats may have started out as a forum for sharing cartoons and comments of exhausted, multi-tasking parents and DIY haircuts, some employers have regrettably discovered that WhatsApp can be a fertile ground for ‘banter’ which borders on or blatantly amounts to harassment and bullying of colleagues.

What are your responsibilities and potential liabilities as an employer, if a group of employees set up a WhatsApp Group on their personal mobiles and make derogatory comments about, for example, a colleague’s disability, religion or sexual orientation? Can and should you discipline them? Can the subject of the comments bring a discrimination claim under the Equality Act 2010 against you as the employer? Even though the messaging was conducted on the employees’ personal mobile phones outside of working hours and is considered by the perpetrators to be ‘just banter’?

The answers to these increasingly common questions depend on the quality and robustness of your policies and training on equality and diversity, social media, harassment and bullying. To put it bluntly, if you haven’t put in the groundwork before your employees’ Whatsapp banter crosses the line into discrimination, then at best you’re responsible for instigating grievance and disciplinary proceedings and at worse, facing costly settlement negotiations or an uncomfortable few days in an employment tribunal. Tribunal claims can come from both directions if your policies haven’t spelled out to the harasser that discriminatory social media and messaging activity won’t be tolerated. You could be stuck in the middle of a discrimination claim to the left and an unfair dismissal claim to the right.

If you are giving evidence in tribunal against any such claims, you want to be in a position to show the dates on which the employees involved received training on your HR policies, particularly on equality and diversity. Such evidence may prevent a claim even getting off the ground. Any defence to such claims will also be bolstered by well drafted policies on equalities and diversity, harassment and bullying and social media use.

For more information please contact Sophie Ray, Employment Solicitor at Morgan LaRoche on [email protected]