WhatsApp is increasingly being used as evidence in employment tribunals, fuelling warnings to avoid using the social media app at work. The Telegraph has the story.
The number of employment tribunals making reference to WhatsApp has almost tripled since 2020, from 150 hearings to 427, according to HM Courts and Tribunal Service.
Financial institutions including NatWest have now banned staff from using private messaging services such as WhatsApp and Facebook Messenger.
Employees could be dismissed for private messages that criticised their employer or manager, lawyers have warned, with jokes about protected characteristics, such as someone’s age, sex or sexual orientation, also posing a risk.
Ian Jones, the director and principal solicitor at Spencer Shaw, told The Telegraph: “If there is a sufficient work connection to the WhatsApp group, almost inevitable if the members are a group of work colleagues exclusively, then any wrongdoing by an employee – harassing comments, discriminatory behaviour (even if unintended), bullying, reference to sex or sexual issues – will mean that the employee may be liable to disciplinary or even legal action.”
Leaving a colleague out of a WhatsApp group can also be grounds for complaint.
Darren Case, a housing officer, was sacked after setting up a WhatsApp group called “Wolfpack”, inspired by a name given to a group of friends in the Hangover film franchise.
In the chat, he sent inappropriate messages about a female colleague who was specifically excluded from the group.
Tai Tarian, the Welsh social housing provider, was notified of its employee’s messages by a member of the group in April 2018. Case was accused of bullying the woman by commenting on her weight, speech and personal hygiene, describing her as “autistic” and encouraging games to be played at her expense.
Derogatory comments or jokes about a protected characteristic, such as commenting on someone’s age, sex, sexual orientation, gender reassignment, religious beliefs, disability, could amount to discrimination under section 13 or harassment under section 26 of the Equality Act 2010.
Dawn Dickson, a partner at Anderson Strathern, said jokes about someone’s appearance were “big risks” because they could come across as offensive.
“It doesn’t matter what the sender intended – it’s all about how the message is perceived and what effect it had,” she said. “Another concern is bullying – for example, when someone uses WhatsApp to mistreat a co-worker or leaves them out of a work group.
“If this kind of behaviour continues unchecked, it could lead to harassment claims or even constructive dismissal, which can be expensive for employers.”
Mark Brosnan was awarded more than £130,000 in compensation after he was excluded from a work WhatsApp group chat while on sick leave. The plumber argued he had been victimised by his employer setting up a group chat without him.
An employee criticising an employer or manager could also find their messages being used as evidence in an employment tribunal.
Debbie Barker was dismissed from her role as night manager at the Corporation nightclub in Sheffield after describing her boss Mark Hobson as a “c—” and writing that he “can suck my b—-” in a WhatsApp group called Rebel Alliance.
Ms Barker later told the company: “We all trusted each other and felt safe within [the chat]. That was the level of trust we had in that our information was safe within the group and not to be shared outside.”
Mary Walker, a partner and employment law expert at Gordons, a law firm, said that “obscene or defamatory” messages must always be investigated by employers and could be considered grounds for dismissal.
She said: “Put simply, if it is something you wouldn’t say out loud, or to your family, it shouldn’t be on WhatsApp. Proactive steps from employers can address the informality of certain communications channels.”
The informality afforded by WhatsApp also carries the risk of work spilling over into private lives, with contact outside office hours.
When Hemanta Mainali received a late-night message from his colleague, he took it as a “deliberate attempt to disturb him” and reacted angrily. Mr Mainali, a sushi kiosk boss, left the business soon afterwards and later sued his colleague for harassment.
Ms Walker added: “In some cases, it is subjective as to what constitutes whether an inappropriate WhatsApp message is sackable. However, this highlights the importance of workplace culture.
“If one is fostered which dismisses obscene messages as “banter”, then the likelihood of a more toxic culture escalates and would be viewed poorly by outside audiences, or an employment tribunal.”
Worth reading in full.
