As the way we work evolves, it is natural that the methods we use to communicate develop in ways that make it easier for us to perform our roles.
In today’s increasingly agile corporate culture, coworkers come together flexibly to work on particular projects. The need to communicate flexibly often results in companies embracing some of the latest social and instant messaging tools, many of which provide a greater sense of interpersonal interconnectivity than email. However, employers need to be mindful of how these tools are used in the workplace. Increasingly businesses are faced with allegations of breaches of confidentiality and data protection under GDPR and the Data Protection Act 2018, as well as bullying and harassment claims under the Equality Act 2010.
There are however clear advantages in the use of social and instant messaging, offering a multitude of communication benefits. These can include “end-to-end” encryption to protect company data, rapid file sharing, and the fostering of a more inclusive work culture. In theory, colleagues from all departments can gather around the virtual “watercooler,” participating in a hive-mind that fosters innovation and creativity. In practice, however, increasing numbers of workplaces are encountering problems related to social messaging. Grievances and claims are inevitably emerging, especially relating to issues such as bullying, exclusion and harassment.
In order to prevent issues occurring that could lead to legal disputes, it is vital that companies become familiar with the particular workings of the instant messaging apps their employees use – and develop a realistic understanding of the ways that they are using them – as well as the different types of intrapersonal issues that may arise from workplace messaging. Ensuring that policies on social messaging are put in place and that staff are educated about best practices can help a company prevent problems occurring amongst the workforce, and get the best out of social and instant messaging.
Social and instant messaging apps: making our comms more complicated
There is no shortage of communication apps marketing themselves at the workplace; most of which have a social backbone. Many existing software conglomerates have developed an optimised “work edition” – for example, Facebook Workplace and Skype for Business. The popular platform Slack, which has a number of daily users surpassing more than 10 million, bills itself as, “essentially a chat room for your whole company.”
According to a 2018 survey by TotalJobs, over 90 percent of employees connect with colleagues on messaging apps. As well as purpose-built professional communications tools, many companies have co-opted the social messaging platforms that they use in their personal lives for work purposes. WhatsApp and Facebook are the platforms most commonly used in this way in the UK.
Blurring boundaries between the workplace and personal life complicates a company’s communication culture. A given instant messaging app used by an employee may host a mix of communications, comprising those that directly relate to work, witty social exchanges with colleagues, and messages about their private life. A person may dip in and out of different threads twenty-four hours a day, splicing their personal and professional life minute by minute.
A digital dystopia: legal claims resulting from social and instant messaging
One increasingly observed effect inherent in social communication methods is that employees adopt the same communicative behaviours which they would typically use in their personal communications. Furthermore, they discuss non-work-related matters – even to the extent of creating extra-curricular threads on their professional communications channels.
While many workplaces permit banter – up to a point – it is becoming clear that social and instant messaging is vested with the potential to become a digital dystopia where banter becomes bullying. Threads rating the attractiveness of colleagues and sharing pornographic material are surprisingly common. People Management quotes a copywriter who describes the “underground Slack saloons” in his organisation, rife with “eye-wateringly bad language” and offensive GIFs.
It is vital that employers have a clear picture of the kinds of communications taking place amongst company staff, so that they can understand what kinds of problems may arise when their employees use instant messaging apps in the workplace, and how the law may be applied in each case. Laws which typically come into play in relation to problems resulting from social messaging apps include:
The Equality Act 2010
Although bullying is not considered grounds for a claim in and of itself, the nature of workplace bullying is that it often takes a form discrimination on the basis of protected characteristics such as age, disability, race and gender reassignment, or creates an atmosphere in which the target feels degraded or unsafe. Employers are advised to let staff know that they may be personally liable for claims made against them. The Equality Act 2010 does not differentiate between different forms of communication; behaviours which violate it can be grounds for a successful claim, regardless of where they take place.
Furthermore, employers can be vicariously liable for any offensive messages sent by employees on social media, even if they occur outside of work hours, and even if the messages were sent from employees’ personal accounts, or if they were sent using their own devices.
The Protection from Harassment Act 1997
Employers owe a duty of care to their staff, which encompasses protecting them from behaviours which constitute harassment. Messages which are upsetting can be categorised as harassment, and it is important for staff to be aware that they personally could be liable for bullying and harassment claims as well as being exposed to civil or criminal complaints under the Protection from Harassment Act 1997.
The GDPR and Data Protection Act 2018
This legislation controls how personal information is used by organisations, individuals, and the government. In the course of a professional working day, a person might be working with sensitive personal data, including financial details, biometrics or information about others’ sex lives or sexual orientations. The use of messaging apps to communicate work-related information can lead to the unauthorised dissemination of material, which can result in informational leaks for which employees may be personally liable.
The Working Time Regulations 1998
Workers cannot legally be required to work more than 48 hours per week. The use of messaging apps creates a sensation of being in constant contact with one’s team, with 53 percent of respondents to the TotalJobs survey saying they use apps to keep in contact with colleagues while on holiday, and 34 percent maintaining a virtual dialogue while off sick. When claims relating to stress are made, companies with a round-the-clock messaging communication culture may be found to be liable.
Managing social and instant messages: policies that protect
The best way to avoid claims and disputes relating to social messaging is to prevent the development of a toxic social media culture in the first place. This involves ensuring that all employees understand the acceptable use of social media and instant messaging in the workplace, clearly identifying what constitutes bullying or harassment.
It is recommended that all employers carry out an audit of their communication and social media channels being used by staff when reviewing existing policies or creating new ones and identify what are official and unofficial. Employers also need to be alert to new apps and trends to keep up to date and regularly review contracts and policies to ensure they continue to be fit for purpose.
Staff training is also an important measure to ensure employees fully understand the culture of the organisation and how this applies to the use of messaging and social media, both during their new starter induction as well as being part of regular refresher training for existing staff. Most employees are unaware that the messages they send could be used as evidence in tribunals or in court.
It is also important to make staff aware that they could be personally liable for incriminating messages sent out of hours, as well as during the working day.
The more clearly a company understands the nature of the apps that staff are using, the more precisely and effectively they will be able to advise on appropriate modes of messaging. Conversely, when management does not understand the intricacies of the apps used by staff, and when company policies need to reflect this, the potential for misuse grows, opening up a window for claims and disputes related to social messaging.
For more information or to speak to a member of our team, please contact us to discuss how we can help.
