In today’s digital age, communication has evolved beyond the constraints of mere words on a page or screen. Now we can express joy, sadness, surprise, or humor through small, vibrant symbols called emojis. Emojis allow us to convey emotions, intentions, and tones that can sometimes be difficult to express through written words alone. With a single character, an emoji can amplify a message by providing a visual representation of our thoughts and emotions.
An employer may respond to an employee’s request for vacation with a thumbs-up emoji, thinking that it reflects the employer’s acknowledgment of the receipt. In contrast, the employee may interpret the same emoji as an approval of his request. While this situation may seem like a minor miscommunication, it could have more significant financial implications for your business. This article will discuss how emojis can lead to contract formation and what you can do as an employer to protect your business from unwanted liability.
AN EMOJI MAY LEAD TO CONTRACT FORMATION
A recent King’s Bench for Saskatchewan decision of South West Terminal Ltd. v Achter Land, 2023 SKKB 116 (“South West Terminal“) is a cautionary tale for anybody who uses emojis in their official communication. In this case, the court ordered a farmer to pay more than $82,000 in damages for not delivering a product to a grain buyer after responding to a text message with a thumbs-up emoji.
Generally, a contract is formed when there is an offer by one party that is accepted by the other and supported by consideration. The legal test to determine whether an agreement is a contract is whether a “reasonable and objective bystander”, aware of all the material facts, could conclude that the parties agreed to the contract. Therefore, when it comes to the interpretation of a contract, the parties’ subjective intent is irrelevant. The courts consider the viewpoint of a reasonable and objective bystander to determine whether there was an agreement to enter into a contract and the terms of such a contract.
In South West Terminal, for example, the court relied on the parties’ pattern of entering into multiple purchase contracts via text message, whereby the farmer would respond to the grain buyer’s text messages containing a purchase contract with “looks good,” “ok,” or “yup”, and deliver the produce. The court held that a reasonable bystander, knowing the background of the case, would come to the objective understanding that the parties had reached a consensus ad item – a meeting of the minds – when the farmer responded to the grain buyer’s text message with a thumbs-up emoji. Therefore, with respect to the circumstances in the South West Terminal case, the court held that the thumbs-up emoji was “an action in electronic form” that expressed acceptance for the purposes of contract formation. While South West Terminal was a purely contract dispute, its findings are relevant in other disputes involving the interpretation of contracts, such as employment disputes.
EMOJIS IN EMPLOYMENT CONTEXT: WHAT TO DO AS AN EMPLOYER
Employees make various official requests throughout the course of their employment, such as requests for workplace accommodations, leave of absence, promotion and career advancement, higher pay and benefits, relocation or transfer, and flexible work arrangements, among other requests. Nowadays, most of these requests are made digitally through emails and messaging applications like iMessage or WhatsApp.
Responding to any employee request with a thumbs-up or handshake emoji may signify approval. Employers must exercise caution when using emojis in their professional communications. They must be mindful of the potential legal implications of using emojis when responding to requests made by employees in digital form. If there is an employment dispute due to a difference in both parties’ interpretation of a particular emoji and the matter goes to court, the court may not rely on a party’s understanding of what the emoji signifies. Instead, it would determine the parties’ intention to contract and its terms from the viewpoint of a reasonable and objective bystander, as explained above.
Employers should always err on the side of caution and respond to every employee request or change in employment conditions in clear and unambiguous terms. While emojis may add a touch of personality to digital conversations, their usage must be approached with caution. By being mindful of the potential pitfalls, employers can embrace emojis in their day-to-day operations while maintaining the integrity of their communications in the workplace.
CONCLUSION
Emojis, although seemingly harmless and informal, can carry unintended meanings and may be subject to misinterpretation. South West Terminal sheds light on the evolving landscape of digital communication and its impact on contract law. The court’s ruling, which recognized a thumbs-up emoji as a valid expression of acceptance, signifies a significant shift in how we interpret and understand contractual agreements in the digital age. As emojis and other forms of digital communication become increasingly prevalent, employers must use them while being mindful of their impact on contractual intent.
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