Scottish Tribunal Upholds Dismissal for Inappropriate WhatsApp Content

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Factual summary

A Scottish employment tribunal dismissed an unfair dismissal claim brought by a tree surveyor, Terry Donaldson, who was sacked by Southern Electric Power Distribution. The tribunal found that Mr Donaldson's dismissal for gross misconduct was fair, following his sharing of "obviously inappropriate" videos, images, memes, and comments, including pornographic material and "rape jokes," in two WhatsApp groups, one titled 'Banter' and another 'Work Stuff Only'. The tribunal concluded that such content, even in ostensibly private groups, had a direct impact on the working environment and posed a significant reputational risk to the employer.

What happened

Terry Donaldson, a tree surveyor for Southern Electric Power Distribution, was dismissed for gross misconduct after an investigation revealed his involvement in sharing inappropriate content within two company-related WhatsApp groups. The content included "scantily clad" women, pornographic videos, and "rape jokes," shared during work hours. Mr Donaldson had received diversity training and agreed to the company's social media policy. Following his dismissal, he claimed unfair dismissal, arguing the content was "banter" and that he used his personal phone, believing the groups were private. An employment tribunal in Glasgow dismissed his claim, finding the employer's investigation fair and the content unequivocally inappropriate. The tribunal highlighted the risk of such material being disseminated and the potential for severe reputational damage to the employer.

Why this matters

This tribunal judgment reinforces that employers can take disciplinary action, including dismissal, for inappropriate content shared in ostensibly private digital communication channels, such as WhatsApp groups, particularly when there is a nexus to work. It underscores that claims of privacy or "banter" may not protect employees from disciplinary consequences if the content is deemed offensive, discriminatory, or poses a reputational risk to the organisation. The ruling emphasises that such communications can directly impact the working environment, regardless of the perceived privacy of the group.

UK workplace relevance

UK employers should ensure clear social media and communication policies are in place, explicitly covering the use of private messaging apps for work-related or work-adjacent communications. Employees should be aware that content shared in such groups, even outside official company channels, can be subject to disciplinary action if it violates company policies, creates a hostile work environment, or risks the employer's reputation. This case highlights the importance of consistent application of policies and thorough investigations into alleged misconduct involving digital communications.

What an employee may wish to document

• Social Media and Communications Policy: A comprehensive policy should clearly define acceptable and unacceptable use of all digital communication platforms, including private messaging apps, especially when used for work-related discussions or by groups of colleagues. It should specify that content shared, even on personal devices or in "private" groups, can be subject to disciplinary action if it impacts the workplace or employer's reputation.
• Inclusion and Diversity Training Records: Documenting employee participation in training on inclusion, diversity, and anti-discrimination is crucial. This demonstrates that employees have been informed of expected standards of conduct and relevant legislation.
• Investigation Records: Detailed records of any workplace investigation, including interview notes, evidence gathered (e.g., screenshots of messages), and a clear rationale for findings, are essential for demonstrating fairness and thoroughness.
• Disciplinary Hearing Records: Minutes of disciplinary hearings, including the allegations, the employee's response, and the employer's decision-making process, are vital. The dismissal letter should clearly state the reasons for dismissal, referencing specific policy breaches and the impact of the misconduct.
• Risk Assessment for Digital Communications: Employers should regularly assess the risks associated with employee use of digital communication platforms, particularly those that blur the lines between personal and professional interaction, and update policies accordingly.

Related guidance and tools

ACAS guidance · How to document workplace bullying · Workplace incident log

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