Insight: WhatsApp in the workplace – risks for employers
Lesley Grant and Kimberley Tochel of BTO Solicitors LLP flag risks for employers following a recent ruling.
An employee claiming disability discrimination has been awarded more than £134,000 in compensation. The recent Employment Tribunal judgment in Brosnan v Coalo Limited underscores the associated risks of using WhatsApp in the workplace.
Mr Brosnan was a plumber employed by Coalo Limited. In February 2020, he experienced the re-emergence of a lower back injury caused by an industrial injury he sustained a year prior. This led to him being off sick for a period of time in 2020. The occupational health report at the time concluded that his condition constituted a disability under the Equality Act 2010.
Alongside other discrimination claims in relation to sick pay and failure to make reasonable adjustments, Mr Brosnan also claimed that he was victimised by having been excluded from a WhatsApp group set up by his employer.
‘WhatsApp’ with excluding an employee?
The tribunal found that, based on Mr Brosnan’s evidence given in his grievance, his exclusion from the WhatsApp group was ‘because of’ his absence and therefore because of his disability. The tribunal further found that the employer failed to demonstrate that excluding Mr Brosnan from the group was justified. Therefore, their actions were not justified and amounted to disability discrimination.
Mr Brosnan was awarded £17,700 for injury to feelings (for discrimination), £8,200 for personal injury, £39,800 for loss of earnings, £5,100 for unfair dismissal, which with grossing up, unpaid holiday pay, unauthorised deduction of wages and breach of contract amounted to £134,400.
Key ‘messages’ for employers
From an employer’s perspective this highlights the importance of managing sickness absence and the actions required to ensure that the employee is not discriminated against during their period of sickness. Further, it emphasises the employer’s duty to make reasonable adjustments to enable those living with disabilities to overcome disadvantages they face because of their disability.
WhatsApp in the workplace
Group chats, used properly in the workplace, are part and parcel of good communication in the workplace.
Another notable takeaway from this case for employers is the risks of using WhatsApp within the context of work. Employers must ensure that their staff are using messaging platforms like this in a proper and professional manner. This was previously brought to light by the earlier decision in Muna Abdi v Deltec International Courier Limited where the tribunal ruled in favour of an employee who brought a harassment claim following discriminatory remarks made in a WhatsApp group chat by her colleagues.
The tribunal found that there was evidence that messages in this WhatsApp group chat were unwanted comments relating to race that had both the purpose and the effect of creating an intimidating, hostile, degrading, humiliating and offensive environment for the Claimant.
It is important for employers to be aware of the risks of workplace group chats if they are not policed or not used properly. Employees who feel excluded from these groups could bring claims of unlawful discrimination under the Equality Act 2010, arguing that the exclusion is because of or related to a protected characteristic. Remember that employers will often be liable for the discriminatory acts of their employees, and employees themselves could be personally liable for discrimination claims.
Employers should ensure that they have comprehensive policies in place to cover the use of messaging platforms and other social media, as well as providing training to all staff which makes clear that misuse of these platforms by staff, whether by exclusion, bullying behaviour, discrimination or other inappropriate comments will be unlawful and a potentially serious disciplinary offence.
Lesley Grant is an associate and Kimberley Tochel is a trainee solicitor at BTO Solicitors LLP