You discover a WhatsApp group at work containing insulting and hurtful accusations and asking for your, and other managers’, suspensions. Would it be fair to dismiss employees for joining that group?

Like so many workplace issues, it would depend on all the circumstances. But on similar facts in the recent case of Nigro and others v Knightsbridge Residents Management Company Ltd: 2206792/2020 and others, the employment tribunal found the dismissal unfair.

The judgment highlights a few things that employers can do that might avoid that finding. Most importantly, your policies and the disciplinary decision should be as clear as possible.

The facts

On 14th July 2020, an employee passed away. Some colleagues blamed their employer, saying that it was a toxic environment and they were under too much stress.

On 20th July 2020 one of the managers was approached by an employee and accused of being responsible. And, a disgruntled employee started a WhatsApp group titled ‘Voicesunited199’. It included a message detailing the toxic work environment and threatening a protest if certain managers were not investigated and suspended.

It was not clear who sent the first message. Other colleagues joined the group, saying things like “I’m in”, “Me2” or just giving thumbs-up emojis.

The managers were concerned about the sentiments conveyed and the threat of a protest. They appointed an independent HR investigator who interviewed the employees who joined the group and grappled with the issue of whether WhatsApp came within the business’s email and internet policy or its social media policy.

The difficulty was that the email and internet policy referred to WhatsApp and other instant messaging in the context of using such messaging for work. The social media policy gave examples of social media, including Facebook, LinkedIn and Twitter. It did not define social media, but social media seems to include online media that is public in nature.

The employer said that WhatsApp was social media because “social media is electronic-based technology that allows people to share views through smartphones.”

The employment judge disagreed, principally because WhatsApp is only mentioned in the employer’s policies in relation to instant messaging at work which seemed to draw a distinction between social media and WhatsApp. The messaging was not done in connection with work so it did not come under that policy. Whereas Facebook is by nature public, WhatsApp is encrypted and therefore closed to those beyond the group.

One consequence of not being clear which policies applied to this was that it made it impossible to give the employees fair notice of which policies were breached, which is always required in a disciplinary investigation. The employer had argued that it needed especially strict security and privacy policies due to its particularly wealthy clients. In effect, that would have meant that employers with wealthy clients have lower disciplinary hurdles, which cannot be right.

The judge also disagreed with the employer that joining the group and saying things like “I’m in” constituted defamatory comments. The claimants had distanced themselves from the allegations of bullying and would not have been in the position to know the identity of the original poster and would not have known whether they were substantiated or defamatory.

Perhaps most importantly, the judge considered that dismissal for the actions as alleged was outside of what a reasonable employer might decide. All they had done was join a WhatsApp group and say things like “I’m in”. That is always the final question to ask in a disciplinary decision. Even if the policies had been applied correctly, they cannot make a trivial breach into gross misconduct.

Lessons for other employers

The biggest hurdle for the employer was that its policies were not clear as to what WhatsApp messaging came under. It appears, therefore, that the investigator and the decision-maker fudged the matter, in order to find a way to dismiss the employees.

Perhaps WhatsApp is one of a kind, neither social media nor totally private. If you create a group and make all participants administrators, it could spiral out of control in a way that other forms of messaging cannot. Accordingly, perhaps it would have been open for other employers to address WhatsApp differently. Alternatively, perhaps the employer could have addressed the matter “on first principles” – if you learn of an employee badly insulting another at work, you may be able to treat that as misconduct, whether the insult is verbal or written in a private message.

Further, you should always consider the specifics of your employees’ conduct. It may be unwise to indicate agreement to something without knowing exactly what it’s about, but does it deserve dismissal? Unlikely.

If you need any help addressing matters like this, either after things have gone wrong or in devising suitable procedures so that you might avoid disaster, let us know – we have numerous employment lawyers who would love to assist.