The Labour WhatsApp scandal caused a media storm last week, as leaked messages sent by health minister Andrew Gwynne to a group chat were revealed. These messages included racist and sexist comments, and expressed hope that a pensioner died before the next election.
The closed WhatsApp group chat, named ‘Trigger Me Timbers,’ is believed to have been made up of up to 20 members, including two MPs, more than a dozen Labour councillors and several party officials.
Sir Keir Starmer sprang into action immediately, suspending both MPs involved and a further eleven councillors from the Labour Party.
Now a third MP is under fire for apparently being the administrator on another WhatsApp chat that branded veterans and pensioners ‘nazis’, ‘fascist thugs’ and ‘terrorists’.
For HR professionals, these high-profile examples highlight the issue of lines becoming blurred between professional and private communications.
So, can employees be held accountable for comments made in private chats? And how should organisations address situations similar to the Labour Whatsapp scandal, where the line between personal conversations and professional misconduct has been crossed?
Can employees be held accountable for comments made in private chats?
The short answer is yes, employees can be held wholly accountable by their employer for comments made in private chats. Essentially, if a matter comes to the workplace or affects the employer’s business or interests in any way then it is a matter in which the employer can become legitimately involved.
However, employers must have evidence that suggests that employee has made such comments. Armed with this evidence employers may be able to form a reasonable belief that the employee in question did make them.
Employers must be extremely careful when obtaining this evidence as to not overstep the mark. Everyone has the right to a private life so employers should not be monitoring private conversations, especially on devices not provided by the employer. Doing so may bring into question the employer’s compliance with human rights laws.
Once evidence has been uncovered though, employers need to determine the extent to which the comments have broken an established rule, whether an express rule or an implied one. Behaviour does not always have to take place within working hours to result in repercussions at work. Even if no specific rule has been broken, employers may still want to informally address any distasteful comments made by employees.
Generally, the more proximate to the employer’s business the communications are, and the more inflammatory or inappropriate they are, the greater the degree of impact it will have upon the employer.
How can employers protect themselves?
Whilst employees can be held accountable, employers must have the right documentation in place to safeguard themselves.
Employers should protect themselves by having clear social media policies setting out what is acceptable and what is not. It is useful for employers to set out rules on what they consider unacceptable behaviour. This makes it clear to employees what kind of conduct will get them into trouble and so provides a sound basis for any disciplinary action.
These policies are generally focused on work channels for communication. But employees should understand that some behaviour will have repercussions at work even if it happens outside of work. In the case of sexual harassment, for example.
The policy should also stipulate that employers may take action even if social media or WhatsApp comments are not made directly in the course of employment.
What steps should HR take when inappropriate private messages are uncovered?
Fair disciplinary sanctions are based on reasonable belief, which is formed by conducting a thorough investigation. So, before taking action against any employees for inappropriate private messages, it’s important to carry out a full and thorough investigation.
There is no law that sets out how an investigation should be carried out step by step because circumstances may vary so widely. However, the investigation should centre around fact-finding. Employers should determine who may know something useful, book in time to speak to them and build up a picture of what evidence is available.
Employers can be taken to an employment tribunal if an employee feels they have been unfairly dismissed and dismissals can be ruled unfair based on an investigation that was not thorough enough. So, whilst employers must act swiftly to ensure the behaviour is dealt with, it is of the utmost importance that this process is not rushed or missed entirely.
The Labour WhatsApp scandal presents a stark reminder to employers to take these matters seriously. Employers should carefully consider how offensive messages affect their business and how they interact with their internal policies in determining whether action needs to be taken. Employers should be mindful that they have a legal obligation to take reasonable steps to prevent harassment in the workplace.
