Digital communication at work: Social media & WhatsApp risks

In this episode of the Employment Pod, Helen Goss and Peter Olszewski discuss the legal implications of expressing controversial beliefs on social media and the impact on an employer's reputation. The case of Higgs v. Farmer School highlights the dynamic surrounding personal beliefs and workplace policies. For employers, this case shows the need to assess whether a belief itself is objectionable before taking action. 

They also explore the risks associated with workplace WhatsApp groups and best practices for employers. Confidential business and employee information may be shared improperly, and WhatsApp messages are legally disclosable in disputes. 

Social media and WhatsApp can be valuable workplace tools, but they also carry risks. Employers should take proactive steps to create clear policies that align with modern workplace communication trends. 

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Chapters

• 5:20 Higgs v. Farmer School case discussion
• 15:45 Workplace WhatsApp groups: benefits & risks
• 25:30 Best practices & employer guidance

Transcript

Helen Goss: 0:04 

Hello everybody and welcome to the Boyes Turner Employment Pod. My name is Helen Goss and I'm a partner in the employment team at Boyes Turner and I'm with my colleague Peter Olszewski. 

Peter Olszewski: 0:16 

Hi Helen. 

Helen Goss: 0:17 

So the Employment Pod we talk about a whole host of issues that affect the world of work from an employment law and HR perspective. So today we're going to talk about the expression of potentially controversial beliefs on social media and the impact on employer reputation, which Peter's going to talk to you about, and then I'm going to look at whether it's ever safe to sound off in a WhatsApp group, particularly a work WhatsApp group. So, Peter, there's a new case, isn't there? That's come down from the Court of Appeal the Higgs and Farmer case. Do you want to just give us a bit of information about that case? 

Peter Olszewski: 0:58 

Yes, definitely so. This is the case of Miss Higgs, and Mrs Higgs is a practicing Christian and she was employed as a counsellor at the farmer's school. Now Miss Higgs, outside of work, was posting but mainly reposting a number of Facebook posts and in those posts she was criticising the way gender and relationship topics are taught in schools. Now a parent from the school saw these posts and she put a complaint in and in particular, she said that she found the views to be homophobic and prejudiced. So the school took this seriously, as they should do, and they carried out an investigation with Miss Higgs, looked at the posts, they suspended her and then eventually they ultimately dismissed her. Now Miss Higgs brought a claim against the school for harassment and direct discrimination and her main argument was that she'd been dismissed because of her religious beliefs that gender is binary and same-sex marriage can't be equated with marriage between a man and a woman. 

Helen Goss: 2:05 

So, Peter, what did the school say was the reason that they dismissed her for? 

Peter Olszewski: 2:10 

They were saying it's reputational damage that her posts are causing. Because her posts were public, her Facebook profile and page was open and public and obviously someone had seen it and someone had taken offence to it to the degree that they felt it was necessary to go to the school. So it really was to do reputational damage and how her views could be seen to be the views of the school as well. okay thanks. okay, yep, so the case went to the employment tribunal and and the school defended the case. 

Peter Olszewski: 2:43 

They defended it on the basis as I've just said. They believed her views were reputationally damaging to the school and perhaps could be substituted as also being the school's views, and they also stated that their response to her making these posts was warranted and fair. It was right and proportionate to dismiss her and the Employment Tribunal in the first instance, they agreed, they said she was not dismissed because of beliefs but because of the reputational damage. So Mrs Higgs disagreed with that, as she would, and she appealed to the Employment Appeal Tribunal and the Employment Appeal Tribunal actually allowed her appeal. They said that the tribunal hadn't considered whether her social media activity had in fact been an expression of her religious and personal beliefs. 

Helen Goss: 3:36 

So what? They just focused on the potential reputational damage to the school. 

Peter Olszewski: 3:40 

Indeed, yes, and how her views had actually been perceived by the public or, in particular, a parent of the school. So the Employment Appeal Tribunal, they remitted the case back to the tribunal to reconsider. But what Miss Higgs did was she appealed again. And she appealed to the Court of Appeal and said, no, I shouldn't have to go to another hearing. Actually, what the Employment Appeal Tribunal should have done was just substituted a judgment in my favour. So the case then went further to the Court of Appeal and the Court of Appeal agreed. They confirmed that gender critical beliefs such as those held by Miss Higgs and the manifestation of those beliefs are protected by the Equality Act. So, in effect, the dismissal was deemed to be unfair and she was compensated accordingly. Now I think the key thing to come out of this case is the implications of it. Cases in the past where there are religious and philosophical beliefs have had mixed outcomes. 

Helen Goss: 4:48 

Well, there have been quite a lot of cases about cakes, haven't there? 

Peter Olszewski: 4:51 

There have. There was the wedding cake case where a baker was asked to produce a wedding cake and on that cake it would have a message basically promoting or condoning same-sex weddings, and the baker in that case refused to produce the cake and that was on the basis of religious beliefs. And again a case that went through the courts and the bakers in that case were found not to have committed any wrong. They were allowed to express their religious beliefs and refuse to produce that cake. 

Helen Goss: 5:25 

What are the implications for businesses and the workplace in respect of this case? 

Peter Olszewski: 5:30 

Well, the Court of Appeal and the Employment Appeal Tribunal. Actually, they, to a degree, laid down a new test that employers are going to have to need to consider, and you know historically where just relying on reputational risk is enough. Employers now are going to have to consider whether the expression of the belief itself is objectionable. Ok, so what does that mean In this case? 

Peter Olszewski: 5:57 

Miss Higgs, she was mainly reposting, but she posted her own beliefs and whilst many people will find them offensive, you know, we have to remember that there isn't any legal right not to be offended and, in particular, there's also the convention on human rights, convention that does provide rights to people to express their religious beliefs. Freedom of expression, and we have to balance that carefully with our right to protect ourselves. Now, if what she had done was repost these Facebook posts and maybe put a comment with it, I strongly disagree, or this is disgusting, or used profanities that then may have been objectionable, but simply to express a belief which is religiously held is different. So the employer is really going to have to consider whether the actual manifestation of that objection is objectionable. 

Helen Goss: 6:55 

And I suppose she was posting in her own personal time on her own personal Facebook page. Was the school identified by her in any way? 

Peter Olszewski: 7:06 

No, so the school wasn't identified by her, but it was known in the local community that she was a teacher at that school. 

Peter Olszewski: 7:13 

And she did have the page open as a public page which anyone could view, not just her friend list. So, yeah, there was definitely that to consider as well. The second thing that any employer or business is going to have to consider is, if the person has done something which is objectionable, what is the proportionate response? Now, in this case, it was established that her views hadn't actually impacted on her work. She wasn't going into school and refusing to teach the lesson or refusing to sort of communicate or work with people that are gender fluid. She had an unblemished work record other than this incident, and she'd been there for a long time I think it was six years. So to dismiss her was considered not to be a proportionate response. Now, if they had taken a lesser response perhaps a written warning, perhaps advising training the outcome of the case may have been different completely, but they did take what was considered to be completely disproportionate. 

Helen Goss: 8:18 

It's interesting, isn't it this right to be offended? Because I think a lot of people do think that they have a right not to be offended and you would hope that in as many cases as possible, that you will be able to avoid offending anyone. But ultimately, there isn't really the right not to be offended unless the wording or the speeches are actually, as you say, offensive and objectionable. 

Peter Olszewski: 8:46 

Yeah, indeed, and the EAT actually did lay down some guidance that businesses can follow when considering if a post or an expression is actually objectionable. So I'll run through those quickly. One is the content of the manifestation. So what was said, if there's any images accompanying it, hashtags, the tone used I know it's a post but obviously if I post something fully in capital letters it's seen as me shouting or ranting or if I used exclamation marks to really make my point. 

Peter Olszewski: 9:22 

The extent of the manifestation, the workers understanding of the likely audience. The extent and nature of the intrusion on the rights of others. The consequential impact on the employer's ability to run its business, whether the workers made clear the views are expressed are personal or if they're representing the views of the employer, where there's a potential power imbalance, given the worker's position or the rights of those who are intruded upon. The nature of the employer's business is is going to be important. So you know they're only guidelines. It's not a a fixed list, it's not exhaustive, but employers can certainly go back to those guidelines and use that to to try and determine and make the right outcome as to whether it was objectionably offensive. 

Helen Goss: 10:23 

There have been several cases that come down in the last two or three years about reputational damage because in the past a lot of companies when they have been looking to dismiss have relied on reputational damage to kick what might be serious misconduct into gross misconduct and justify dismissal. 

But there has been a bit of a stop on that hasn't there? 

Peter Olszewski: 10:36 

Yeah, there has been, and employers are going to have to be able to point to actual examples of reputational damage. Now, in this case, the school rightly pointed to the fact that a parent had complained and that can be seen as reputational damage. But they had to go a lot further than that and actually look at what she had done and whether that actually amounted to reputational damage and again, looking at her actual role. Whilst she did express those views which some may find offensive, it wasn't actually impacting on her work, it wasn't impacting the outcome of her work and none of the pupils at the school were suffering from it. And it wasn't, you know, subsequently then, affecting the school's grades or what it was providing to the community. So the reputational damage there yes, it was seen by a parent, but did it actually manifest itself into real reputational damage? And in this case, the tribunal and court of appeal said no. 

Helen Goss: 11:35 

It'll be interesting to see if there are any cases following that and what the outcome of those is going to be. 

So social media it is in the press an awful lot at the moment and we are getting quite a lot in the news about WhatsApp groups. So I just wanted to talk about how wise is it to have a WhatsApp group at work, whether that's an officially organised one or perhaps just offshoot of employees getting together and creating their own. So is it a safe place to sound off? And, without spoiling the end of the story, I think I can say very clearly absolutely not. No, it's not a safe place at all. So I mean, obviously there are a lot of benefits of WhatsApp groups because it's a very useful communication tool, particularly in a hybrid workplace where we're not actually in the office and we can't just turn around and speak to our colleagues. It's very simple, it's fast, it's a way to share ideas, keep in touch, collaborate or even perhaps share urgent information that needs to be dealt with quickly and, of course, it can create rapport amongst teams where happy news in our firm, one of our team members has just had a baby. So over the weekend, on our officially organized employment WhatsApp group we got a picture of the new father and baby, which was absolutely lovely to see. 

Helen Goss: 13:12 

It can allow discrete communication and of course, that is potentially where some of the problems arise. So employers don't necessarily know that these groups have been set up or what is being said. An employee might be left out. The conversation might move into bullying or discriminatory comments and even harassment and, to go back to your case, offensive messages or terminology. So it can potentially lead to formal complaints, to grievances, even tribunal claims, where claims of discrimination or constructive, unfair dismissal might be made. Often confidential information can be shared in these groups and so there is the risk of inappropriate sharing of confidential information, potentially outside of the organisation, or sharing information about other members of the team or the workplace. And of course, as I said before, the employer may not even know that this is going on. We do often have cases where a lot turns on what has been said in WhatsApp messages, and that's both informal messaging but also formal groups set up by the workplace where even managers are making. I mean I'm sure, peter, you know about cases like that. 

Peter Olszewski: 14:42 

Indeed, and you know, as you say, whatsapp can be fantastic, but even the most simplest thing can lead to a problem. I had a case where there was a team of I don't know 10 members and, for whatever reason, one of one of the ladies in the team was just not in the group. She was excluded and she brought a claim saying it was bullying, it was a toxic environment, she wasn't wanted, and it actually transpired it a simple mistake. For whatever reason, she wasn't on the group. But it just shows how WhatsApp, what is designed and intended to be a social media tool, can actually become a problem tool, and that's why you should A bit of a weapon, really, isn't it? It can be indeed. 

Helen Goss: 15:20 

Well, we've had some very public examples, haven't we? In the last few weeks, two MPs, Andrew Gwynne and Oliver Ryan, have been suspended by the Labour Party, along with 11 councillors, over comments that they made in a WhatsApp group which apparently are allegedly sexist, racist and other unpleasant. We had Matt Hancock's own biographer who leaked his WhatsApp messages to the press the, the Telegraph and, of course, Boris Johnson during the COVID inquiry couldn't find them and apparently they were automatically erased by software. So it's a very current subject which, as I say, there are a lot of benefits, but then there are also quite a lot of problems with it. So it's not all. Happy birthday or I'll be late because the trains have been cancelled. It can be often a lot more sinister. 

Helen Goss: 16:12 

So it won't surprise anybody to know that our suggested way of helping to deal with WhatsApp messages is to have a policy. Now, I know that we have a lot of policies in our handbooks, but it doesn't have to be a separate policy. It can be part of the social media policy or the acceptable use policy or, if you want, a standalone policy. But I have to say I do think it is probably now a good idea, in that our handbooks have to keep up with the technology that we have and are routinely using in the workplace. Do you know any businesses, Peter, who actually have a WhatsApp policy? 

Peter Olszewski: 16:52 

None that have a specific WhatsApp policy, but yes, as you say, that they will have reference to it in their social media policies. But I do think it's worth either having a separate or separate part of the policy dealing with WhatsApp. At least, WhatsApp on its own is a complete messaging service and a minefield, so it's not a case of policing it. You know we don't want to impose that on our employees, but they should know what they can and can't do and what the boundaries are. 

Helen Goss: 17:20 

Well, the sorts of things I've been having a think as to what you would want to put in your policy. So you'd want to remind people about etiquette. So the comments shouldn't be rude or discriminatory, they should be inclusive and respectable, they should be about appropriate subjects. So you do need to remind people about the risks of banter, so those risks that can occur actually in person, exactly the same in WhatsApp messages. And also they should be at appropriate times, because not everybody wants that ping going off at the weekend or late in the evening. 

Peter Olszewski: 18:01 

I've agreed and I think there's also. I think all businesses should also consider confidentiality. You know if I messaged you this weekend hey, Helen, have you dealt with the Joe Bloggs case? And I'm discussing client names and you might reply, yes, I've put the application in, or you know he's now being dismissed or whatever it may be, and you know potentially well, not potentially that could be classed as a breach of confidentiality. So we really need to be careful what we're saying about actual work things as well as the personal things in the pictures and comments we post. 

Helen Goss: 18:33 

Well, exactly, and that's a good point, peter, because these messages are disclosable in legal proceedings. 

Peter Olszewski: 18:41 

They're disclosable. I know WhatsApp says it's an encrypted service. I'm no computer expert, but I don't know how far that encryption goes. Well, I certainly know it's not encryption that's put in place by the employer. So the employer can't control that. And you know who knows what an employee will do with that If an employee leaves their business. But they keep the WhatsApp group open or keep that chain of messages again, again. They've left the business with your data. 

Helen Goss: 19:08 

No, that's that's a that's a very good point. So I think it's important that everybody should know that they can have no expectation of privacy because you just don't know what somebody's going to do with the messages that you have sent. Clearly, messages are disclosable, whether that's in a disciplinary or a grievance and ultimately in court proceedings. And even if you were to refuse to show the messages yourself, perhaps because it was on your own personal phone, then I think you'll find that somebody else will probably dob you in and show the messages anyway. So you cannot have an expectation of privacy, and what is written in WhatsApp messaging can form part of evidence of what has happened in proceedings. 

Helen Goss: 19:58 

You've you taught, Peter, about the security risk, so I don't need to cover that, but it is a potential security risk about information, either about confidential information of the business or personal information of individuals, whether they're in the group or not in the group. I think that also it's sensible to raise the fact that there is an annoying ping when a new WhatsApp message comes in. So that could be annoying in the workplace, but also it potentially impinges on your personal private time and that concept of the always-on culture. There has been some talk of us not being able to contact team members when they're not in their official working time. Now, that hasn't come into law and I'm not sure that that will, but it's definitely something to bear in mind, as has the fact that people who perhaps have disabilities, or people who perhaps are neurodiverse, or even people who are introverts, may not want to be permanently hearing the ping or have messages being fired at them on WhatsApp as well as trying to do their normal day-to-day job. The issue of gossip and disinformation there is a risk. 

Helen Goss: 21:20 

I think that a WhatsApp messaging is quite informal and can create a negative work environment. Now, if it's a work organized WhatsApp group, then it is for the managers to police it, I think. And if conversation is going in the wrong direction, stop that and have a word with the individual and perhaps delete messages. But where, of course, the employer doesn't know about a WhatsApp group, then it's very difficult for them to police it. And that's where the policy hopefully, will help people to understand what is and what is not acceptable. 

Helen Goss: 22:01 

And, of course, you mentioned, peter, people being left out of a group. That's a very damaging, even if it's done by mistake because the feelings because the feelings of being left out or excluded can be quite intense and lead to some very bad outcomes for the business, particularly in respect of discrimination or potential constructive dismissal. When you're doing a policy or adding to a policy, it's absolutely essential that you let employees know that there is an addition or an amendment to the policy. So you've either got to refer them to the appropriate link or some businesses actually ask people to virtually sign as proof that they have seen the policy, which makes it much easier then to take action if there is inappropriate behaviour in respect of WhatsApp groups.  

Peter Olszewski: 23:03 

Yeah, I agree, and I've also seen in in contracts and employment, where it is a term that you're asked to to review your handbook on a regular basis. But I think, as you say, the best bet is just to refer people to a link to it or send them the actual document so they've definitely received it and at best they would sign. But, yes, definitely send them it so you can evidence that it was sent to them for them to see. 

Helen Goss: 23:17 

Exactly Now. We do have a precedent policy, so if anybody is interested then obviously they can get in touch. I just wanted to have a couple of seconds in respect of monitoring. Probably about 20 years ago this was a huge subject and there was a lot of outrage that the business or the employer could monitor emails. Obviously now, emails is just one part of the messaging services that a business will use, so ultimately a business can monitor, particularly if it's on a company device. It's obviously not so possible in respect of people using their own personal accounts, but they're only really going to be able to monitor as long as it's in the policy that the business and all the members of the people in the business understand that monitoring can happen. There's all sorts of software and there has to be a good reason for the monitoring, but usually a business can find the good reason, particularly if there's a risk of the leaking of confidential information or offensive conversations or terminology being used. 

Peter Olszewski: 24:33 

Okay, and I think it's important for employees and employers to understand that WhatsApp messages, especially where they're on an employer-owned device, can be monitored. So there really isn't any privacy attached to WhatsApp. But for another point, to bear in mind that even if you are using WhatsApp on a private device, the fact that it's a group chat, there may well be someone else using or who has access to that group chat on an employer-owned device. So, again, the prospects of complete privacy over that group are limited and people need to be wary of that. But it's very important that employers do state in their policies that WhatsApp messages can be monitored. 

Helen Goss: 25:16 

Well, that brings us to the end of our podcast today, so I'd like to thank you, Peter, because that was a really interesting case and something that's going to rumble on, I suspect, for quite a long time into the future. 

Peter Olszewski: 25:29 

Yeah, definitely. We'll be seeing this come up again. So thank you, Helen. 

Helen Goss: 25:32 

And thanks to all of you for listening to the Employment Law Pod. If you'd like to check out more of the Employment Pods, then please do head over to the Boys Turner website. You can also follow or subscribe wherever you listen to your podcasts. Goodbye.