Childcare Counsel - WhatsApp group chats and policies

Amid Covid-19, participation in WhatsApp group chats has soared. This has included work colleagues using the social messaging platform to keep up morale and a sense of team spirit in the absence of face-to-face contact.

While such team chats may have started out as a forum for sharing cartoons and DIY haircuts, some employers have regrettably discovered that WhatsApp can be a fertile ground for ‘banter’ that borders on or blatantly amounts to harassment and bullying.

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 against you?

The answers depend on the quality and robustness of your policies and training on equality and diversity, social media, harassment and bullying. If you haven’t put in the groundwork before your employees’ WhatsApp banter crosses the line then you are responsible for, at best, any grievance and disciplinary proceedings and, at worse, any costly settlement negotiations or 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 giving evidence in a tribunal, you want to be able to show the dates on which employees received training on your HR policies, particularly on equality and diversity. Your defence will be bolstered by well-drafted policies on equality and diversity, harassment and bullying and social media use.

For more information, please contact Sophie Ray on sray@morganlaroche.com