Whatsapp messages when conducting an investigation

03 February 2021 | Eleanor Greenwell

Can employers rely on ‘WhatsApp’ messages when conducting an investigation within the workplace?        

Whatsapp is an extremely popular app amongst many work colleagues.  It is seen as a useful workplace communication tool, particularly when arranging team meeting and social events.  However, the app is also used as an opportunity to gossip.  Staff should be mindful with what they write as it could be used as evidence in ongoing workplace investigations. 

It is important that employers establish a transparent communication policy making it absolutely clear that any WhatsApp messages (during and out of work time) will be used as evidence.  It is important staff are aware when ‘banter’ goes too far.    The policy should state that there is an expectation for all to adhere to professional non bullying and harassment behaviour.  It should also make reference to the company’s Equal Opportunity Policy and well as Disciplinary and Grievance Policies. 

There have been many disgruntled employees challenging what can be viewed under ‘Whatsapp’ messages in the workplace as all staff have the right to privacy.   

Human rights act 1998

Under Article 8 of the Human Rights Act 1998, everyone is entitled to privacy, however there is a fine line which overlaps in cases of serious circumstances.

There have been many successful outcomes from being able to use Whatsapp messages as part of ongoing investigations and disciplinary hearings. 

In Case v Tai Tarian 2019, Case was dismissed under gross misconduct for bullying an autistic female work colleague on Whatsapp.  He had made derogatory remarks about her weight, personal hygiene, and her speech. At tribunal, Judge Rhian Brace concluded that the dismissal was fair based on his appalling views of his female colleague.

In another, Garamukanwa v United Kingdom 2016, the employer was successful in dismissing the employee for harassment.  He had sent personal intimate emails and photos from his iPhone to a work colleague with whom he had a relationship with.  He insisted that he had the right to privacy on this matter.  In light of the material that he had sent to his former work colleague, tribunal disagreed with his argument and concurred with the employer that the termination of his employment still stood.

The article is for general information purposes only and should you require any further assistance on the matter please do not hesitate to call our advice-line team on 01455 852028.

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