Long reads

Do you know what your employees are saying in private messages?

24 May 2018 By Emily Burt

WhatsApp, Slack and their ilk are powerful ways to collaborate. But businesses rarely understand the legal and reputational risks involved

In an innocuous looking WhatsApp thread, conversation has moved from mundane workplace matters to a bitter row about transgender rights. “Womankind is big enough to embrace those on the edges,” one participant writes, while another argues: “You can’t define women’s rights if you can’t define women.” A third participant leaves the group in silent protest, while a fourth responds with a simple: “Bollox.” 

The views are personal and vitriolic – and are being swapped between female employees of the BBC. The thread, which was leaked to BuzzFeed in early May, evolved from a ‘BBC Sisterhood’ WhatsApp group created organically by employees to organise female staffers protesting their organisation’s gender pay gap. It has quickly become a textbook example of what can happen when the lines between work and social communication tools become dangerously blurred. 

Email, while still the backbone of corporate life, is being supplemented and in some cases surpassed by swifter, more responsive forms of digital communication. These collaborative tools enable instant conversation between multiple parties and meet the need for more agile and flexible ways of co-working – often through apps that ‘thread’ conversations, facilitate ongoing project communications, support workshops and development groups, and share files at the press of a button.

In many industries – most obviously technology and financial services, but also education and retail, among others – they have become near ubiquitous. 

But there is a dark side to the trend, with a growing number of legal cases involving bullying and harassment via messaging tools and mounting evidence from HR professionals and consultants that such technology is featuring in grievances and disputes. Are employers, which often cannot control or monitor messaging tools (and may not even understand them), out of their depth?

The king of private messaging is WhatsApp, the platform that bridges the gap between the formality of emails and the agony of phone calls. Two-thirds of People Management readers polled on Twitter use it to communicate with colleagues. According to a January 2018 survey by Statista, 84 per cent of 25 to 34-year-olds are using it regularly. 

But it isn’t the only option when colleagues want to talk: phone and desktop-friendly app Slack runs on the tagline ‘Where Work Happens’, while Microsoft’s collaboration platform Yammer brings people from the same business together. Workplace by Facebook and its Messenger system extend the social network from personal to professional, while WeChat is a fast-growing WhatsApp rival.

“These tools have been adapted for work – they are so easy for people to use; a quick, expedient and very authentic means of communication. Email comes close, but is also very linear, clunky and time-consuming,” says marketing and social media expert Michelle Carvill, author of Get Social. “Another benefit is the breaking down of barriers and organisational silos. Sometimes, to collaborate on a project you need people from different departments to converse in one space.” 

David D’Souza, membership director at the CIPD, adds that the uptake of such apps is a sign of increasingly integrated workplace communication, attributing the particular popularity of WhatsApp to its ease of access. “It doesn’t require any set-up or integration from IT – you can communicate with colleagues in a fluid and seamless way, inside and outside of work, without any training,” he says. 

“It provides the ability to give instant updates to groups of people, from an idea you’ve thought of to the fact that you’re going to be late into the office, in a way that doesn’t feel like ‘proper work’. This can improve social cohesion and socialisation, because it naturally creates a community.” 

Yet despite the touted benefits of agile working, and the official adoption of messaging apps by companies from Samsung to the Los Angeles Times, a snap CIPD poll in August 2017, which asked HR professionals whether WhatsApp enhanced or hindered corporate culture, returned mixed reviews. A quarter (25 per cent) of respondents were in favour of the app, around a third (35 per cent) were ‘unsure’, while 40 per cent said it undermined their working lives – with one respondent describing the app as a ‘viper’s nest’. 

“The workplace group WhatsApps are used to be rude and show off, and encourage poor taste in behaviour,” one respondent wrote. “I believe some people would be fired if senior management had access to the communication.” 

Another said the app was “primarily used for gossiping and bitching about other members of staff”, adding: “I work in an office where the millennials sit there all day [...] messaging each other and sniggering like schoolchildren.” 

Colin Grange, clinical director at employee assistance programme LifeWorks, says he has witnessed complaints about conversations over instant messaging apps. “They do blur the workplace-personal boundary, regardless of the fact that, if you are using these apps with your colleagues, they are still your colleagues,” he says. 

“Inappropriate workplace communication has always been an issue, whether it’s face to face or over the phone, but people tend to communicate across those platforms in an especially unguarded, blunt and direct way. There’s something about these apps that make people let their guard down.” 

Further anecdotal evidence offered to People Management suggests that far darker behaviours than millennial sniggering could be at play. On Twitter a digital copywriter volunteered stories of “underground Slack saloons” in his organisation where employees use “eye-wateringly bad language” and share offensive GIFs. 

Meanwhile, a teacher described a colleague inadvertently sending pornographic content to a WeChat group of colleagues during school hours. “He accidentally posted a porn video to our group chat, which was meant for an ‘alternate’ thread just populated by the guys,” she says. “None of the women, including those who had male partners also working at the school, were aware of this group.” 

The thread, it later transpired, was used for sharing pornographic videos and GIFs between male staff: “To make things worse, our manager was a member of the porn group and he thought the whole thing was hilarious.” None of those involved were punished.

Simon Rice-Birchall, employment partner at Eversheds Sutherland, has seen an increasing number of workplace disputes occurring over WhatsApp and other messaging tools, something he partly attributes to people subconsciously treating the apps as speech rather than writing. “You might put something in an email that you probably wouldn’t put in a letter, and so on – the more informal the medium, the more informal you are prepared to be,” he says. 

“These days, email has become pretty formal, so instances of people behaving inappropriately would be clearly inappropriate, but when you get into these messenger devices it can be a recipe for disaster.” 

As the trend of messaging apps at work is relatively new, case law in the area is limited, but growing. In March 2017, a former investment banker was fined more than £37,000 by the Financial Conduct Authority for sharing confidential information with a friend over WhatsApp in an effort to sound impressive – texting that he would be able to pay off his mortgage if one of the deals was successful.

Another incident in September 2017 saw four police officers fired after one of their phones was seized over a separate case, which led to the discovery of a WhatsApp thread containing homophobic comments, ‘abhorrent’ language towards disabled people and a reference to a sex crime. 

At an employment tribunal in April 2018, a female British Transport Police officer based in London claimed she had been the victim of sexual harassment and discrimination after male colleagues mocked her and excluded her from a private WhatsApp group where they shared pornography with each other. 

Rice-Birchall, who recently handled a case involving a group of senior managers at a financial firm using WhatsApp to share pornography and rank their female colleagues by sexual attractiveness, told People Management that many people fail to understand the potential consequences of such behaviour, particularly if the bullying or harassment in question takes place on a private phone and outside office hours. “In this particular case, the men involved started off saying to their employer: ‘This is nothing to do with you. These are my mates, and this is my phone… this is private, go away,’” he says. 

In reality, section 26 of the Equality Act 2010 is applicable in such cases. It states that if one person harasses another for a protected characteristic; if they engage in unwanted conduct that has the purpose or effect of violating dignity; or they create an intimidating, hostile, offensive or degrading environment, it constitutes a breach of the law. “There are no words in the legislation that make exceptions for private phones or emails,” says Rice-Birchall. “If you violate dignity in the workplace you can be liable, regardless of where it takes place.” 

Liability under the Equality Act can also be extended to the employer – even if it has no knowledge of the messaging network being used by staff. “The employer is vicariously liable for the acts of any employee carried out within the course of the employment,” Rice-Birchall says. Regardless of working hours or private phone use, should behaviours make a working relationship between members of staff difficult or impossible, it can become a workplace matter that an employer has a duty to manage.

So how can managers seek to address issues of workplace messaging gone awry? One (almost too obvious) solution is to monitor staff. If a conversation is taking place across a workplace system, an employer can reasonably expect to scrutinise the behaviours provided they can offer a clear justification for doing so, says Rice-Birchall: “Good data protection policies should make it clear that these are work-related systems, so while employees are able to use them for a reasonable amount of personal use (such as sending an email to the bank) it should also be clear that the employee understands their actions could be vetted.”

One quick fix for this is to make the terms and conditions of instant messaging use clear. Andrew Kinder, professional head of mental health services at Optima Health and chair of the UK Employee Assistance Professionals Association, suggests that employees agree to a code of conduct before being allowed access to the apps. 

“If you sign up to a system, especially one enabled by your organisation, there should be a code of behaviour that explains good use, inappropriate use and the actions that will be taken in the instance of any breach, which you click and say you agree with,” he says. “This ensures people are knowingly posting in places where the information is open to scrutiny – that transparency is crucial.” 

Failing to clarify the situation can see employers fall on the wrong side of privacy law. In 2017, the European Court of Human Rights sanctioned a company for breach of privacy after it monitored an employee’s emails sent over Yahoo Messenger without his prior knowledge, and subsequently dismissed him for using the internet for personal purposes.

However, if bullying or harassment occurs on a personal phone or private network, an employer can only intervene if it is given clear proof of inappropriate behaviour. The onus for tackling these issues subsequently shifts onto individual workers fighting the bystander effect, speaking up against bad behaviour and providing their employer with sufficient grounds to investigate. And that in turn becomes a cultural issue. 

“It’s hard for individuals to stand up and say ‘I don’t agree with what you are saying’, because they risk becoming a target themselves, but these behaviours mimic going back to the playground and standing up to the bully,” Kinder says. “This is hard, but in the past organisations including Royal Mail have worked on improving bystander intervention, because it is where you get that change of culture.” 

As an employer, you cannot force members of staff to turn over their private phones for investigative purposes if they refuse to give them up willingly.  “However, you are entitled to say the fact that they won’t let you see what they are doing speaks volumes about their actions,” says Rice-Birchall. 

As cases on bullying over messaging networks become more common, it’s probable that direct law or case law will become more sophisticated in guiding process. But taking a proactive stance in tackling the underlying issues goes beyond arguments around liability, or professional and private servers. “Hopefully, best judgement says ‘be smart, you want to keep your job and be a good person in the world, play nicely’ – but if people are going to act like bullies they will do so regardless of the technology,” Carvill says. 

This drives the ultimate solution back to education and organisational culture. “HR has, historically, too often given in to the desire to form policy, where we really need to be acting as educators and guides,” D’Souza says. “We have to understand the extent to which technology is at fault, rather than the fact people have always gossiped and bullied, or behaved inappropriately at work.” 

This means focusing on diversity and inclusion issues, committing to clear standards of behaviour and zero-tolerance towards unacceptable attitudes, and taking a proactive stance on any issues that arise. D’Souza is clear: “At its heart, this challenge is not about whether the employees or the organisation get caught – it’s positively influencing the behaviour, the mindset and the values behind their actions.” Or, failing that, perhaps the old maxim applies: if you wouldn’t print it out and leave it lying around, don’t type it in the first place.

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