“They’re 25; they don’t care. They don’t go on their emails, they go on Snapchat, they go on all these things,” he said.

“To speak to my employees, I go on Instagram or LinkedIn. It works better.”

In an age where “quiet quitting” may or may not be sweeping through professional services workplaces, and in which hybrid working arrangements and utilisation of tech platforms are mainstream, it is, of course, understandable that partners, general counsel and others with managerial responsibilities in law will look for new and better ways to meaningfully engage with their employees.

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However, messaging staff via their personal social media accounts — colloquially known as “sliding into DMs [direct messaging]” — should be a no-go, say three firm partners.

Respecting boundaries

According to Maddocks partner Ross Jackson, employers need to remember that “respect and consent are the keys to attracting and retaining staff in a tight labour market”, on top of ensuring they are engaged and productive.

“That means respecting employees’ entitlement to a private life.

“Their non-work-related social media platforms, such as direct messaging, should never be used by their employer for work-related communications without their consent,” he posited.

Employers should be clear, Mr Jackson outlined, with all their staff about what means of communication they use to communicate with them about work.

“If it is email, then right from the start, employees need to be told what the expectations are: that is, ‘this is your work email account, that you need to check regularly during work hours, and is it okay to contact you by text or phone on the mobile number you gave us for urgent matters?’,” he said.

“An employer can lawfully and reasonably direct an employee to use the means of communication the employer provides. A view that ‘no one uses email’ isn’t a reason to use an employee’s personal DMs without their consent. Instead, it is a reason to be clear about what the employer provides and requires staff to use.”

Managing psychosocial hazards

It is also important to remember, Hall & Wilcox partner Fay Calderone identified, that leaders and managers in law have obligations to manage psychosocial hazards in the workplace.

“If the contact is persistent, demanding and the expectation is for a response after hours, this may be considered a psychosocial hazard exposing the firm and the supervising lawyer/partner to risk,” she warned. 

It is best, Ms Calderone submitted, to have clear frameworks about what appropriate communication forums are for work-related discussions — “and stick to them”.

“It may also be generally expected that communication on these platforms will occur during reasonable business hours as distinct from social media platforms, especially where they are sent when the sender can see the recipient is online,” she said.

Avoiding blurred lines between personal and professional

For Swaab partner Michael Byrnes, there are “significant problems” with using non-conventional modes of interaction, such as the messaging function of social media accounts, to communicate with employees.

“An issue that arises with all social media accounts is the connection of that account to the employment of the account holder. There are accounts that are purely conducted in a personal capacity, some that are a mix of personal and professional and those that are purely professional (such as LinkedIn),” he detailed.

There are good reasons, for the benefit of both employers and employees, Mr Byrnes explained, as to why certain accounts should be conducted in a personal capacity.

“If something posted on such an account leads to a controversy, it enables the employee to distance the post from their employment, and the employer, to the extent any public response is required, can say the post was done by the employee in a personal capacity and not related to the organisation. Sound social media policies in the workplace clearly address this issue,” he argued.

“If employers use a personal social media account to communicate to the employee about work matters, it can muddy the waters as to the status of the account, undermining good social media practice designed to minimise the risk of rogue social media use.”

Moreover, he went on, using direct messaging on social media rather than email can lead to a more casual style of communication that can increase misunderstandings or lead to inappropriate or unprofessional language — which, he said, could amount to bullying or harassment.

Better monitoring of correspondence

Further to this, and from a risk management perspective, Ms Calderone said that platforms employers manage could be better monitored (“with appropriate notices regarding surveillance”), which is preferable in managing complaints by employees and risks by employers. 

Mr Byrnes supported this, noting that there is the ability to store and preserve emails, “and that ability is not available to the same extent on social media platforms and can be subject to the operational vagaries of the companies that operate those platforms”.

“Compounding this risk, because the exchanges are being conducted through social media accounts, employers do not have the same oversight and ability to monitor as exists when communication is conducted through email on the system of the employer,” he said.

General appropriateness

Finally, Mr Byrnes added, communicating using social media platforms is unlikely to be appropriate for confidential or sensitive information.

“It is more susceptible to hacking or even review by the platform itself (pursuant to the terms and conditions of the platform),” he pointed out.

“How would clients feel knowing their legal affairs are being discussed via Instagram direct messaging, using the same account the lawyers use for party or holiday photos?”