Kneppelhout & Korthals: WhatsApp during working hours? No work, no pay!02/21/2017

By Alexander Briejer - Attorney

This article was originally published in Texpress no. 11 of October 2016 (in Dutch)

Millions of workers use WhatsApp’s communication services. Worldwide, billions of messages are sent with WhatsApp each day. In the mentioned decision of October 19th, 2016 from the cantonal Court in Tilburg, the Netherlands, an employer argues that a former employee has caused damage by heavy use of WhatsApp during working hours.

What’s going on? After the contract of the concerning employee ended, he was entitled to paid leave worth over €5,000. The employer refused to pay out the amount at the final payment. The employer pleaded that the employer had taken damage as caused by the employee. According to the employer, the damage consists of the paid wage that it is not required to pay out. To support the statement, the employer stresses the fact that the employee has violated HR-rules by sending a large amount of WhatsApp messages to several women. Over a thousand messages were sent during a period from July 2014 until January 2015. In this case, the concerning rule states that an employee is allowed to use electronic communication devices for personal purposes to a limited extend. Within the framework of this rule, the employee has to take the carefulness and integrity into account.

The employer states that the employee has violated this rule. Also, the employee argues that the employee has violated the principle of being a decent employee. Prior to the trial, the employer gained access to a large amount of WhatsApp messages used against the employee in the trial. The employer states that the concerning messages can be labeled as intimate messages. The employer states further on that the messages contain a “psychological element” that results in the fact that the employee spends more time on composing the messages. The employer argues that the employee ‘was completely on cloud 9 and got all dragged into it’. The employer states that due to the fact that the employee was sending and receiving WhatsApp messages, he did not work and thus wrongly received pay. Consequently, the employer has suffered damage that is imputable to the employee. The next question is the amount of damage. The employer argues an amount of almost €6,000 and supports the size of the amount with the assumption that the average time spent on a WhatsApp message equals 5 minutes.

The cantonal judge partly agrees with the employer and rules that overuse of WhatsApp can be imputed to the employee. The cantonal judge also rules that one can speak of a situation where the employee has wrongly received pay. This could have been different if the cause of that is partly blamable to the employer. However, that is not the case. Also, the cantonal judge stated that the employee has violated the HR-rules. The judge estimates the damage by taking 1255 WhatsApp messages and 2.5 to 3 minutes of time spent per message, multiplied by the hourly-wage of the employee including paid holiday leave. Using this formula, the judge estimates the damage at a sum of €1,500. The final sum is a result of the fact that the employer owed over €3,500 in paid leave to the employee.

This judgment clarifies the fact that an employee should be dealing with work-related things during working hours and has to be aware of the limited room he has to send out private messages. On the contrary, the line between private life and work life has become more slim in the past years. It is not unusual to communicate with clients and relations through WhatsApp. An employer has to take the right of privacy into account to some extent. An employer cannot just check the WhatsApp messages from his employees on quantity and the content of the messaging (private use or work use). It is wise for an employer to make proper agreements on this topic and add it to the HR-rules. The employer can also opt to include such agreements in a labor contract. In such case, the employer has the possibility to impose a sanction in case of violation by added a fine clause to the use of WhatsApp at work. Luckily for the employee, the employer as mentioned in this case did not do so.