WhatsApp 'Banter' with Colleagues Can Lead to Dismissal

A Scottish employment tribunal has determined that employees cannot invoke ‘privacy’ as a defence to escape disciplinary action for misconduct in workplace messaging groups. This decision clarifies that material shared in "seemingly private" WhatsApp groups can greatly affect the workplace atmosphere and present considerable reputational risks for employers. 

Background 

The case centred on Terry Donaldson, formerly employed as a tree surveyor at Southern Electric Power Distribution, who was dismissed after sharing inappropriate content in workplace WhatsApp groups during working hours. 

The Glasgow tribunal heard that Donaldson began his employment with the Scotland-based SSE subsidiary in May 2021. During his induction, he received training on diversity and inclusion matters and agreed to the company's social media policy requiring "due care and attention" on digital platforms. 

In June 2023, whilst investigating Donaldson's bullying complaint against a colleague, the company discovered questionable content in two WhatsApp groups. One group named "Work Stuff Only" and another titled "Banter" (which featured an explicit image as its icon) both contained work-related communications interspersed with inappropriate material. 

Evidence presented at the tribunal showed Donaldson had shared pornographic videos, inappropriate images of women, and had made offensive comments including rape "jokes" across both groups. The tribunal noted that Donaldson had made comments acknowledging the inappropriateness of the content, including "we don't use that language on the work chat" accompanied by embarrassed emoji reactions. 

In early 2024, Donaldson was fired after a disciplinary process due to gross misconduct. The company highlighted the discriminatory, offensive, and pornographic content of the messages, their timing during work hours, and their inclusion in work-related communications as reasons for the dismissal. 

Donaldson challenged the dismissal, claiming the investigation was unfair and suggesting that personal communications on his private device should remain outside his employer's purview. However, the tribunal rejected these arguments. 

Tribunal Judgment 

Employment Judge Hoey emphasised that both chat groups had direct workplace connections, noting that "new team members were added as a matter of course" and that employment with Southern Electric was the common factor linking all participants. The judge acknowledged nothing prevented content from being screenshotted and shared elsewhere, creating significant reputational hazards for the employer. 

The tribunal concluded that involvement in such messaging groups constitutes workplace misconduct, effectively establishing that "banter" defences and privacy expectations cannot shield employees from the consequences of inappropriate digital communications with colleagues. 

Commentary 

For Employees: 

The boundary between personal and professional communication is increasingly blurred. This case clearly establishes that "private" messaging groups with colleagues aren't truly private in a legal sense when there's a connection to the workplace. Employees should consider any message sent to colleagues - even in seemingly informal contexts like "banter" groups - as potentially visible to employers. The notion that personal devices or private chats provide immunity from workplace policies has been firmly rejected. 

For Employers: 

The ruling strengthens employers' authority to discipline staff for inappropriate digital communications among colleagues, even when occurring on personal devices or in ostensibly private groups. However, this likely creates an obligation for employers to establish clear social media and digital communication policies that explicitly address colleague interactions beyond official channels. Training on these policies becomes essential to ensure employees understand the expanded scope of workplace conduct expectations. 

Broader Implications: 

This case reflects the evolving nature of workplace boundaries in the digital age. As hybrid and remote work become more common, defining what constitutes the "workplace" becomes increasingly complex. The ruling suggests courts are adapting by focusing less on where or how communication occurs and more on the relationship between the communicating parties and the potential impact on the working environment. 

The case serves as a timely reminder that in today's connected workplace, the informal digital spaces we create with colleagues remain extensions of the professional environment, subject to the same standards of appropriate conduct. 

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For more information or to contact our employment law team at Magara Law, call 01869 325 883 or email roy@magaralaw.co.uk.