Social media platforms such as Twitter, Instagram, Facebook and TikTok are used by billions of people worldwide. With employees posting about their interests, often commenting on their work life as well as their personal social activities.

WhatsApp is also one of the most popular messaging platforms. It is increasingly used in the workplace to communicate with colleagues.

WhatsApp messages and screenshots of social media accounts regularly form part of discoverable documents in Industrial Tribunal proceedings, often ending up as key pieces of evidence in a hearing bundle. Therefore, it is well worth looking at a recent English High Court decision last month and considering the top tips for employers below when addressing social media in the workplace.

1. British Airways Social Media Storm

Earlier this month, British Airways (BA) hit a turbulent time on Twitter.

The airline denied claims that it had banned crew and pilots from posting about their jobs on social media. Captain Dave Wallsworth, a BA pilot who had earned more than 110,000 Twitter followers (from posting images captured mid-flight, showing the cockpit and stunning views,) posted to say his popular cockpit photos would be coming to an end following the introduction of a new policy by BA.

The airline recently issued new guidance to employees with a list of ‘dos and don’ts’ outlining what is appropriate content to share with the public, and how to prevent safety or security issues. Many Twitter users commented that posts from BA employees like Captain Dave were nothing but good PR for BA. BA quickly made a statement to clarify that it had not outlawed all work-based social posts but explained that it was not “unreasonable” to ask crew not to be using social media while in the middle of a flight.

BA spokesperson said “We’ve not stopped any colleague from posting on social media – in fact, quite the opposite. We’ve given our people clarity about what’s appropriate and when.”

Clearly this incident with BA highlights the importance of employers having an up-to-date, tailored and robust social media policy, which is clearly understood by its workforce.

2. FKJ v RVT – WhatsApp Evidence

Another interesting case is FKJ v RVT. On 11 January this year, the High Court in England considered the prospects of a former employee’s claim for compensation for breach of privacy rights by the employer in accessing the employee’s WhatsApp messages. The employer had used the employee’s personal WhatsApp messages as evidence in an Employment Tribunal claim.

The Claimant was a heavy WhatsApp user. The employer accessed some 18,000 WhatsApp messages sent by the Claimant, who had been employed as a solicitor. The messages took up 900 pages of the Tribunal bundle (can only imagine the bundle trauma on that one!). The employee brought a claim for sexual harassment against her employer. The employer used some of these messages to undermine her credibility.

The messages contained several years' worth of day-to-day information about the Claimant’s professional, social and private life, including about her health and sex life. Some of the messages and images, which she shared with her partner (now husband), were of the “most intimate kind”.

The Claimant was first made aware that her employer had accessed the messages when she read the employer’s Grounds of Resistance in the Employment Tribunal claim.

The Claimant’s case was that her employer hacked into her WhatsApp messages by setting up the computer-based “WhatsApp Web” and using her smartphone to scan the QR code generated, which operated as the only authorisation required by the site. The employer was then able to capture the entirety of her WhatsApp messages.

The messages were admitted as evidence in the Tribunal. However, the Claimant subsequently issued a claim for damages in the High Court, alleging that the employer had misused private information. The employer applied for her claim to be struck out.

Decision

The employer’s strike out application was refused by the Court. It was taken into account that the Claimant would ordinarily have had a reasonable expectation of privacy. No explanation or authority had been offered for the proposition that private information downloaded to a work laptop would no longer be private. Given their obvious privacy, there would ordinarily have been a duty to notify the Claimant and deliver up the messages to her.

The decision does not mean that the employer was found liable for misusing private information. The High Court will consider the merits of the claim at a future hearing. This decision highlights the risks that an employer may face when using an employee’s private WhatsApp messages as evidence in an Industrial Tribunal hearing. The fact that some were admitted as relevant in those proceedings or that they had been downloaded onto a work laptop will not necessarily mean that the employee’s rights to privacy can be ignored and substantial damages may be awarded.

Top Tips for Employers

1. Have an up-to-date robust Social Media Policy, tailored for your industry/workplace, which your employees fully understand.
2. Incorporate a group messaging policy within your Social Media Policy.
3. Have a clear policy on how such groups should operate and what content or behaviour is unacceptable within such groups and on social media.
4. Ensure that employees are aware that offensive or discriminatory messages will lead to disciplinary action.
5. Make sure no one is deliberately and unreasonably excluded from a work WhatsApp group to avoid constructive unfair dismissal and/or discrimination claims.
6. Ensure that employees know they should not discuss confidential client or customers matters on Group WhatsApp chats or on social media.