Use of Whatsapp in the workplace
Can your company use instant messaging applications such as WhatsApp as a means of communicating with employees? What are the limitations? See how the use of such applications relates to the rights of your employees.
Instant messaging
Communications to employees
Labour relations
New technologies have changed the landscape of industrial relations. And a lot!
Nowadays, many companies use instant messaging applications such as WhatsApp or Telegram to communicate with their employees and for professional purposes.
This form of communication has led to disputes over the delimitation and scope of their use, which have been analysed by the courts. Some bosses abuse it.
If this means of communication is used in your company, be aware of the following particularities.
Take precautions
The use of instant messaging is permitted in the workplace, but its use may conflict with the protection of workers’ fundamental rights – such as the right to privacy, to digital disconnection, to data protection or even to secrecy of communications – which must always be safeguarded.
Digital disconnection
Schedule
You should be careful about when you send communications by this means and try to avoid using applications such as WhatsApp – which allow for uninterrupted connection and instant replies – outside working hours, as this could infringe your employees’ right to digital disconnection.
This right:
- It protects employees’ rest time after the end of their working day.
- It implies an obligation on the employer to limit the use of work media during rest periods.
- Its safeguarding is of particular relevance for the prevention of psychosocial risks, in order to prevent burnout and work-related stress.
It depends on the case
Recently, the courts have stated that, although sending WhatsApp messages outside working hours does not always entail a breach of the right to digital disconnection, the company cannot demand an immediate response and cannot penalise its employees for the absence of a response outside their working hours, as it is essential to respect their rest time.
For example, if your company works in shifts, try not to send messages to your employees outside their shift, or do not force them to reply outside their working hours.
Check the particularities that may have been imposed by your collective bargaining agreement, as these may regulate specific obligations regarding the protection of rest.
Sanctions
Violation of the right to digital disconnection may be sanctioned by the Labour Inspectorate. Failure to comply with the right through conduct such as contacting the employee outside working hours, on weekends, during holidays, etc. may be punishable by a fine of up to 7,500 euros per workplace.
Remember that the right to digital disconnection aims to guarantee respect for rest time, leave and holidays, as well as respect for employees’ personal and family privacy.
Data protection of workers
Reviewing conversations
Is it a company mobile?
On the other hand, in order to know whether you can review your employees’ WhatsApp conversations, it is important whether the handset is a private or company handset:
- If the mobile device is owned by the employee, you will not be able to inspect it. Otherwise, it could violate the employee’s fundamental rights to privacy and confidentiality of communications.
- If, on the other hand, the mobile phone is owned by the company, it may proceed to review conversations, but only if it has implemented policies for the use of corporate media or has agreed with the employee its exclusively professional use.
Proportionality rule
If the mobile phone belongs to the company and the company has informed the employee that it is for business use only, the company may check it, but always respecting the employee’s right to privacy. To do so, you must:
- Have a well-founded suspicion of a breach of labour law.
- Limit the search to the specific breach.
- And guarantee the suitability, necessity and proportionality of the control measure.
If you have not prohibited workers from making personal use of company devices, you will need their consent to proceed with the inspection.
Establish a protocol outlining the conditions of use of the company’s IT devices and media.
Personal phone number
WhatsApp groups
According to the Spanish Data Protection Agency, you can include your employees in group conversations. However, you must be careful and respect your data protection rights, otherwise you may be sanctioned:
- Purpose
WhatsApp groups must be for the purpose of work organisation and be used for the transfer of professional information.
- Obtaining authorisation
You cannot force employees to give you their home telephone numbers. Therefore, you must always have their consent (it is the employee’s right not to give you their personal number or not to want to join a group with other colleagues with whom they do not want to share their details).
Consent to provide personal data (such as telephone numbers) must be completely free and voluntary, so you cannot force your employees to provide you with this information.
Confidential
As an employer, you should only have access to personal data that is adequate, relevant and limited. And while you may, with the employee’s permission, have access to his or her personal number, you must respect the principle of data confidentiality and prevent third parties outside the company from accessing this information.
Is it valid?
Requirements
It may be the case that you are involved in an employment dispute and you may find it useful to provide WhatsApp conversations with your employees as evidence. The courts have considered the provision of instant messages as a valid means of evidence, provided that:
- A copy of the conversation that matches the original is provided.
- The transcription of the messages is provided (it is advisable that a notary or the lawyer of the Administration of Justice himself should draw up a record of the correspondence between the content of the messages and their transcription).
- The telephone numbers involved and their ownership are verified.
The evidential value may be conditioned by the existence of problems of authenticity and manipulation of the messages. Therefore, provide evidence to ensure the legitimacy of their content, e.g. an external expert report or a notarised transcript.
Substitution of traditional media
Limitations
Finally, you should bear in mind that there are limitations to the use of these applications, so you will not always be able to replace traditional means of communication with the use of instant messaging. This is the case, for example, for redundancy notices.
Some courts have rejected the use of WhatsApp as the only way to communicate a dismissal decision, due to the importance of the measure.
If you want to dismiss your employee and he/she is not at the workplace, in addition to sending him/her a message by WhatsApp, communicate the decision by other means (email, burofax…). The more ways you use, the easier it will be to prove the notification in court.
The use of WhatsApp in the workplace can lead to some conflicts. If you want to create a group with your employees, you will need their consent to give you their personal mobile number. If it is a company mobile, regulate its use.
