Upsetting WhatsApp groups at work – fair reason for dismissal?

If you discover a WhatsApp group at work containing insulting and hurtful accusations and asking for you and other managers to be suspended, is it 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 case of R Nigro others v Knightsbridge Residents Management Company Limited, the employment tribunal found the dismissal unfair.

The judgment highlights a few things that employers could do to potentially avoid that finding. Most importantly, any workplace policies and the disciplinary decision should be as clear as possible.

Please note that currently, employees must have two years of continuous service to qualify for protection from unfair dismissal, unless the dismissal is discriminatory. Under the Employment Rights Bill, this two-year qualifying period will be removed. It is anticipated that this change will take effect no earlier than 2026.

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. 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 having clear policies 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 are here to assist.

For employees:

Do I have to be in a work WhatsApp group?

With the rise in prevalence of messaging apps like WhatsApp, many workplaces are using them as a way for teams to communicate. So, you may be wondering, do I have to be in a work WhatsApp group?

The answer is a complicated one. In theory, you cannot be forced to join a work WhatsApp group, especially if you’re using your personal number and device. However, some employers may have a policy in place and won’t look favourably on your refusal to join. In the UK, there is no one law or legislation covering the use of WhatsApp groups at work. So, your first step should be checking for any specific policies, and discussing your concerns with your manager.

If you are in a WhatsApp group with colleagues, ensuring your messages wouldn’t be considered bullying or reflect badly on your employer is a good idea, as you never know when ‘private’ messages could be shared with your employer by someone in the group.

If you are facing disciplinary action or dismissal because of WhatsApp groups or your refusal to join them, you may wish to get in touch with an employment solicitor to advise you on the best course of action. Click the button to contact a solicitor today:

Can I be dismissed for things I say on social media or WhatsApp?

The use of social media is on the rise, and most people will use one or more social media platforms at some point. Social media is often used as a place to express yourself and your opinions. Sometimes, your employer may not agree with what you are posting. But, can you be dismissed for the things you say in social media or on WhatsApp groups?

Firstly, let’s look at WhatsApp. referring to the case we have discussed above, it was decided that dismissing some employees for what they said in a WhatsApp group was not reasonable. However, every employer’s code of conduct will be different, and so the same circumstances won’t apply in every situation. if you’ve been dismissed because of being part of a WhatsApp group, or something you said in it, talking to a specialist employment lawyer is a good idea. They will be able to advise you on whether you have a likely claim for unfair dismissal. To get in touch with one of our employment lawyers, please click here:

Now, for social media. Can you be disciplined or dismissed for something you say on social media? Posting opinions that could reflect badly on your employer, negative comments about them, confidential information, or anything that could be taken as discrimination or harassment could constitute grounds for disciplinary action. Even if you have a private account, screenshots can mean that your posts travel further than you intended. So, keeping posts relating to your employer or colleagues away from social media is the best course of action to ensure you won’t face any repercussions. If you’re facing disciplinary action for social media posts, and believe it may be unfair, seeking advice from a specialist lawyer can help clarify your next steps.

Please note, this article is for guidance only and does not constitute legal advice.