The rise of WhatsApp in evidence
Posted on 24th October 2024
Data has shown a threefold increase in tribunals using WhatsApp messages as evidence. 427 tribunal hearings in 2023 involved the disclosure of employee WhatsApp messages, compared to just 150 in 2019.
Ian spoke to the Telegraph and People Management Magazine about the increase, and what employers should be aware of.
Disclosure
The general rule is that documents that are relevant to a dispute and affect a key point in a case should be disclosed. Confidentiality or privacy issues do not take priority over this principle. If the information in a message is necessary for disposing of proceedings fairly, then it should be disclosed. A Tribunal can order disclosure if the person in possession of the message or messages refuses to disclose it.
WhatsApp messages are no different than correspondence, emails and other forms of communication.
If there is a doubt about whether a document or message should be disclosed the usual procedure is for a judge to assess it as a preliminary issue and then decide whether it should be part of a case or not.
What is the problem with WhatsApp?
WhatsApp is often used as an informal way of communicating, which can blur the boundaries of professionalism. Users may make comments or messages they find humorous, or which are not intended to be taken seriously. This can be particularly problematic if the comments are offensive or discriminatory - even if the sender did not have that intention.
An employer can be vicariously liable for something said by one of its employees. It needs to be able to show that it took all reasonable steps to prevent abusive or unlawful behaviour.
How can employers respond?
An employer should have a media policy that makes absolutely clear how messaging services can be used, including what is acceptable and what is not. We also recommend training, rather than simply relying on policies which may not be read.
A blanket ban on WhatsApp may be impractical, as it is so widely used. It may also be ineffective, as the same issues may be raised by text messages or emails. It is the content that is important, rather than the method of sending it.
It is better that an employer educates its workforce on expected standards of behaviour and reasonable use of the app.
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