WhatsApp-ening to communication???

It's a common question for clients to ask whether electronic messages or WhatsApp messages can be used in court proceedings or just be relied on as evidence of agreements and negotiations. 

Not only is the answer an absolute yes, but they are all disclosable and so it's not a question of whether or not they can be disclosed, but that they must be produced, even if they don't help your case. Any form of documentation or communication that relates to the facts in dispute is relevant and must be included. 

Which often comes as a bit of a surprise to clients. 

What comes as an even bigger surprise is the extent to which they are responsible for keeping records of all communications, even though those records might be outside of your control. For example, if you let your staff use their own phones which is where they keep all their messages, such as WhatsApp, those communications are relevant, which can cause difficulties if those members of staff no longer work for you. 

So what does that mean for you as an employer? 

Well firstly, decide whether or not you want your staff to use their own devices for work purposes. There is nothing to stop you from having a policy of insisting that everything goes through company equipment or apps and taking steps to ensure staff follow the policy. If it's subsequently found that they weren't doing what they were instructed to do, you might avoid criticism for any relevant emails being unavailable. 

Secondly, if staff are going to use their own equipment, make it clear what the criteria is. Do they, for example, have to upload everything to a server, or make clear notes on relevant files. 

Finally, make sure that whenever someone leaves your employment, you remind them of their obligation to hand over any important data, such as emails or contact details.  

In addition, you can always build in some protection in your staff contracts. For example, you can include a provision in employment contracts saying that when anyone leaves, they are still obliged to provide you with reasonable support in any subsequent disputes, and you can reinforce that if a settlement agreement is entered into before an employee leaves. 

This is yet another reason for making sure that any onboarding or departure of staff is covered by appropriate paperwork, even if it's just making sure you have the right policies and procedures in place, which are clearly set out in your handbook. 

Kleyman & Co Solicitors. The full-service law firm. Available on text, WhatsApp and Spotify!