Workers who engage in ‘banter’ group chats with colleagues are not able to use privacy as an argument to avoid being disciplined by bosses, a Scottish employment tribunal ruled.
Inappropriate and offensive content posted to such an ‘ostensibly private’ Whatsapp group has a direct impact on the ‘working environment’ and can be ‘screenshotted’ 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 Mr 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.
Inappropriate and offensive content posted to such an ‘ostensibly private’ WhatsApp group has a direct impact on the ‘working environment’ and can be ‘screenshotted’ and disseminated by other members, a panel said (file image)
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 (pictured) was told
In June 2023 Mr 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, Mr Donaldson had shared a video of ‘scantily clad’ women on an elephant, porn videos and other inappropriate material.
In the ‘Work Stuff Only’ group he used foul language and made rape ‘jokes’, the hearing was told.
Mr Donaldson also made a ‘number of comments’ in that chat which showed that 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.
Following the investigation Mr 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 that he did not realise the posts, using his personal phone, were against the rules.
A few weeks later Mr 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.
Following the investigation Mr Donaldson was invited to a disciplinary hearing in January 2024 for ‘sending and receiving inappropriate WhatsApp messages’ (file image)
Dismissing his case, the tribunal concluded that the investigation into Mr Donaldson and his colleagues was fair and the messages were ‘obviously’ inappropriate.
Employment Judge David Hoey added that both chats had a ‘direct impact’ on the working environment and the ‘Banter’ group was not just limited to Mr Donaldson’s ‘closest work friends’.
He said: ‘The material in question was so obviously material that would be reasonably regarded as inappropriate and inconsistent with [Southern Electric’s] approach…
‘It was clear that the Banter Group was not limited to a few of [his] closest work friends.
‘It was accepted new team members were added to it as a matter of course, and that what tied members together was their employment with [Southern Electric].
‘There was no way of knowing whether or not such individuals were happy with the material being sent. There was clear crossover between the two groups, with an evident nexus to work and a direct impact on the working environment.
‘[Mr Donaldson] accepted that even although the WhatsApp groups were ostensibly private, there was nothing stopping people from screenshotting the content and disseminating the information elsewhere or if a person changed their mind as to the acceptability of such communications.
‘There was also a clear risk of such content being leaked externally…which gave rise to severe reputational risk.
‘The Tribunal accepted [the company’s] assertion that as such, [Mr Donaldson’s] comments in both groups fell squarely within [their] remit, entitling the respondent to regard it as misconduct.’
