Workers who engage in “banter” group chats with colleagues cannot use privacy as an argument to avoid being disciplined by bosses, a Scottish employment tribunal ruled. The Times has the story:
Inappropriate and offensive content posted to such an “ostensibly private” WhatsApp group has a direct impact on the working environment and can be taken as screenshots and disseminated by other members, a panel said.
A leak of such material gives rise to “severe reputational risk” for an employer and as a result being involved can be regarded as misconduct, it said.
The ruling came in the case of a tree surveyor working for a power company who was sacked after sharing a series of “obviously inappropriate” videos, images, memes and comments during work hours on a WhatsApp group titled “Banter”.
Terry Donaldson and other colleagues at Southern Electric Power Distribution, part of the Scotland-based SSE group, were fired for their involvement in the group, the tribunal in Glasgow was told.
He sued for unfair dismissal, claiming the investigation into his behaviour had been unfair. However, his case was dismissed.
The tribunal heard that Donaldson began working for Southern Electric in May 2021 as a tree cutter surveyor.
During his training he had sessions on “inclusion and diversity” that included detail on discrimination legislation and agreed to the company’s social media policy to use “due care and attention” when using social media platforms.
In June 2023 Donaldson made a complaint about a co-worker “exhibiting bullying behaviour” and during that inquiry the issue of inappropriate WhatsApp messages was raised.
An investigation found two chats, one titled “Work Stuff Only” and one titled “Banter” — the icon for which was a photo of a naked bottom — but both were used for sharing work information.
The tribunal heard that in the “Banter” chat Donaldson had shared a video of “scantily clad” women on an elephant, a hornet with a penis, a cartoon of a female teacher with her legs open and pornographic videos.
In the “Work Stuff Only” group he used foul language and made rape “jokes”, the hearing was told.
Donaldson also made a “number of comments” in that chat which showed he knew the comments were unacceptable including “we don’t use that language on the work chat” and “no more on this group banter group” with a series of embarrassed emojis.
After the investigation Donaldson was invited to a disciplinary hearing in January 2024 for “sending and receiving inappropriate WhatsApp messages” and “failing to challenge” inappropriate behaviours in the team.
At the hearing the next month he accepted responsibility for the messages but said they were banter and he did not realise the posts, using his personal phone, were against the rules.
A few weeks later Donaldson was dismissed for gross misconduct and a letter stated that the messages were “discriminatory, offensive and pornographic”, that the messages were sent during work hours, and “interspersed” with work-related messages.
Dismissing his case, the tribunal concluded that the investigation into Donaldson and his colleagues was fair and the messages were obviously inappropriate.
Worth reading in full.
