Mind your language when it comes to workplace communications

Loose lips sink ships was the famous warning on second World War posters; George Michael warned us against careless whispers; and American poet Carl Sandburg advised us to be careful with our words as once they are said they can only be forgiven, not forgotten.

That last piece of advice has particular resonance today when people are very quick to commit their thoughts to social media and instant messaging channels, sometimes with calamitous personal and legal consequences.

And people should be particularly cautious when it comes to workplace communications.

Instant messaging (IM) has become a regular part of workplace communications, according to Nicola Barden, risk advisory services associate with Pinsent Masons law firm.

"With an increase in the number of employees working from home, dealing daily with colleagues in other locations, or indeed wanting to just send quick, short messages, applications like Slack, Skype, Google Chat, Flock and Lync provide employees with useful platforms to chat to each other in real time," she says. "The attraction for many is the instant interaction and informal nature of the communication."

But people mentioned in those chat conversations, even if they didn’t take part in them, have legal rights to scrutinise them. Under GDPR, individuals have rights of access to their personal data, including personal data that is generated in the workplace. These rights are exercised through submitting a data subject access request.

“Employees don’t always realise that their IM conversations can be stored by their employers, so sometimes they correspond on issues or in a way that they might not ordinarily commit to email, for example. If IM conversations are recorded, and a data subject access request is made to which they are relevant, they may have to be disclosed as part of the response,” says Barden.

“Casual conversations on IM about a colleague might end up in the hands of that colleague. This can lead to unforeseen circumstances for all parties involved.”

Usual role

Access requests in an employment context are usually made with the intention of obtaining information that the employee wouldn't usually have access to in their usual role, according to Pinsent Masons partner Andreas Carney.

“Employers often come to us with questions about whether they need to disclose particular employee-to-employee correspondence in response to an access request,” says Carney.

“That correspondence can include instant messages. The circumstances in which access requests are made by employees differ, but quite often they arise in the context of disciplinary proceedings, grievances, or dismissal.

“The informality of IM means that colleagues sometimes make comments about individuals that they may not otherwise, and these can make their way back to the individuals via an access request. This can compound an already sensitive situation.”

In its latest annual report the Data Protection Commission (DPC) noted that the Workplace Relations Commission and the Labour Court cannot order discovery in employment claims. "This places reliance on data subject access requests, which are adjudicated by the DPC," says Carney. "This is emphasised in the most recent annual report from the DPC, where it said that it received almost 48,500 points of contact in 2019, and that one of the most common trends was employee access requests."

Nicola Barden says instant messaging should be treated in the same way as more formal communications channels.

Principles

"Some employees use workplace IM the same way they might use WhatsApp, Facebook and Instagram in their lives outside work, when really they should be used in line with the same principles and rules that apply to work emails," she advises.

“To address this and avoid potential concerns further down the line, employers should provide training and have appropriate policies in place around the use of any form of electronic messaging in the workplace.

“A good rule of thumb is to make employees aware that if they put it in writing it may be disclosed as part of an access request regardless of the medium.”