When the world moved its business communications online during the Covid-19 pandemic, it took non-financial misconduct with it. But the change didn’t stop there, as with informal messaging came informal language. Emojis entered the corporate world, bringing a fresh and sometimes risky ambiguity to workplace interactions.
In September, the UK’s Financial Conduct Authority (FCA) and Prudential Regulation Authority (PRA) published consultation papers on diversity and inclusion (D&I), placing a greater focus and regulatory consequences on non-financial misconduct. As a result, workplace harassment concerns are rightly at the top of firms’ employee relations and regulatory agenda.
Most financial services teams now have private messaging groups, with employees volleying messages back and forth via instant chats. But even with approved messaging channels, the arrival of social media platforms and instant-chat functions in the workplace serve to blur the lines between individuals’ personal and professional lives.
Despite operating in a highly regulated environment, staff in financial services firms sadly too often overstep the mark when it comes to informal communications. Inevitably, staff engage in personal conversations via instant chat that are unrelated to work, which include comments they wouldn’t dream of committing to email.
This includes the seemingly harmless, yet extremely ambiguous, use of emojis.
Ostensibly innocent grocery produce, the peach and aubergine emojis have become commonly recognised as symbols of certain anatomical features. Facial reaction emojis are also problematic: is a ‘wink’ suggestive, or simply casual? What does a ‘smiling face with heart-eyes’ truly mean? And is a ‘thumbs up’ a micro-aggression?
Additionally, ‘liking’ a colleague’s poolside photo on Instagram could feasibly lead to a complaint of unwanted conduct. This is a minefield for employers.
In and out of the workplace
While some of these situations may seem to be outside of the workplace, there is debate about the point at which the ‘workplace’ and the firm’s legal liability ends. This is a nuance that will, and already does, cause employers significant issues.
Seemingly as part of the preparations for its diversity and inclusion proposals, the FCA has been tracking reports of non-financial misconduct since mid-2021 over six categories. These include ‘bullying, harassment and physical aggression’ and ‘out of office or after hours’.
But regardless of whether the communication is properly attributable to the workplace, the increasingly informal context of communication between colleagues leaves ample scope for offence, confusion and misinterpretation. There is little surprise that this has led to increased bullying and harassment complaints, with allegations of sexual harassment involving emojis and GIFs proving particularly problematic.
In our experience, their meaning becomes a matter of context, requiring detailed analysis of, and debate over, timelines. Crucially, in the context of sexual harassment complaints, the sender’s intention is immaterial as long as the recipient reasonably regarded the communication as harassment.
What the rules and regulations say
The FCA and PRA plan to expressly heighten firms’ responsibility to combat bullying and harassment by proposing to clarify and strengthen expectations around non-financial misconduct. This inevitably includes bullying and harassment that takes place via private messaging.
In this regard, firms will note the FCA’s proposal that its Fitness and Propriety Test should expressly include adverse findings about bullying, sexual harassment and discrimination in individuals’ private as well as professional lives.
While the scope of the FCA’s Conduct Rules does not include conduct in individuals’ private or personal lives, conduct sufficiently connected to the workplace (for example, during work social events) will be within scope and could constitute a breach of the rules that should be reported to regulators and disclosed in regulatory references.
This was widely considered to be in scope of the existing regulatory regime, but the latest proposals leave no room for debate. Firms will also note that material or repeated issues could impact a firm’s threshold conditions.
Firms will also note the duty placed on managers to take reasonable steps to protect staff against harassment and discrimination — a duty on employers which already exists in the Equality Act 2010. However, in the context of dubious messages, firms are faced with the conundrum of what exactly constitutes reasonable steps. This is particularly the case for social media activity and the use of emojis and innuendo in instant chats.
How to protect both employer and employee
A good starting point is a clear and detailed workforce policy. It should address the use of instant chat platforms and social media, bullying and harassment (including sexual harassment). This should be coupled with the provision of regular training to staff.
A further problem area is whether firms that are required to investigate complaints of bullying and harassment can access the offending communications.
If the communications took place via workplace technology, then firms should have access to it (albeit they might find themselves scuppered by a 30-day deletion policy). Alternatively, firms might be able to request that personal devices be delivered up for inspection as long as they have a sufficiently robust policy in this respect.
The proposals set out by the D&I consultation papers reflect the FCA and PRA’s concerted efforts to strengthen regulation of non-financial misconduct, with a view to supporting its wider D&I strategy. Firms should be in no doubt about the seriousness with which the FCA regards bullying and harassment, and wider non-financial misconduct.
Informal communications are inherently difficult to police. However, with financial services regulators tracking, setting out expectations and cracking down on non-financial misconduct, firms need to be very alive to their regulatory responsibilities.
Firms must protect staff and understand that part of addressing the risks and consequences of these new demands will be by attempting to diminish the dangerous ambiguity posed by the seemingly harmless emoji.
Hannah Mahon is a partner, John Morgan is a principal associate, and James England is a senior associate at law firm Eversheds Sutherland.
