A joke too far? Addressing the work group chat

In today’s digital age, workplace communication often extends beyond the office environment to online platforms such as group chats.

Whilst these platforms can foster a sense of togetherness and facilitate collaboration, they can also present challenges, particularly when inappropriate jokes or comments are made.

It is, therefore, important for employers to recognise the impact of such behaviour and how to take proactive steps to address it.

Employers have a duty of care towards their employees, which includes providing a safe working environment free from harassment.

Failure to address offensive and discriminatory behaviour, whether it occurs in person or online, can leave employers vulnerable to claims of harassment, discrimination, or constructive dismissal.

A recent example

In the case of Mrs J Russell v Blackpool Council, Mrs Russell was employed as a Client Finance assistant by the respondent council from March 2019 until her employment was terminated by reason of resignation on 4 June 2021.

Like many others, the respondent’s finance team’s work changed overnight from office-based to home-based with the onset of the COVID-19 lockdown. At the same time, a WhatsApp group was created to enable the team to communicate. It was evident that the WhatsApp group was created for and used for work purposes; however, it soon also became a channel for personal, social communications.

As the pandemic progressed and remote working became more established, the WhatsApp group became less essential, and there were fewer work-related messages.

Unbeknownst to the managers, however, there was a problem with the WhatsApp group. From the outset, a proportion of the messages posted had been unprofessional and inappropriate. These were not the only messages Mrs Russell found unpalatable, but ones which, in her view, constituted unlawful harassment by reference to various protected characteristics and/or fell within the categories of wrongdoing set out in s.43B ERA.

Mrs Russell claimed that she was subjected to harassment by being exposed to these messages, with 66 messages said to be related to various protected characteristics. Mrs Russell reported the messages to her manager at the end of March 2021. She complained about the messages themselves and about how the respondent handled her report about them. She resigned a few weeks after making the report, on 4 June 2021.

Mrs Russell subsequently brought claims of disability discrimination and constructive dismissal related to matters which occurred during the home-working period in which she was successful. The respondent was criticised for failing to investigate the WhatsApp group posts in an appropriate and/or timely way. This case highlights the importance of creating a respectful and inclusive workplace culture, both online and offline.

Considerations for employers

When it comes to addressing jokes or comments in a group chat that cross the line, employers should consider the following:

1. Establishing clear communication guidelines– Employers should develop a comprehensive policy that is regularly reviewed and kept up to date and outlines acceptable behaviour in online communication channels such as group chats. Employers should clearly define what constitutes inappropriate conduct and provide examples to illustrate expectations.
2. Educate employees – Employers should conduct training sessions with employees to raise awareness about the impact of online behaviour on workplace culture and individual wellbeing. Employers should emphasise the importance of respect, professionalism, and inclusivity in all forms of communication.
3. Encourage reporting – Employers should consider putting in place a reporting register for complaints about all forms of harassment so that employees can confidently report incidents of inappropriate behaviour. Employees should be assured that their concerns will be taken seriously, and that appropriate action will be taken to address any violations of company policies.
4. Take swift and decisive action - Upon receiving a complaint or becoming aware of inappropriate behaviour, employers should investigate the matter promptly and impartially. If the allegations are substantiated, then disciplinary action should be taken in accordance with company policy.
5. Foster a culture of accountability – All employees should be held accountable for their online conduct and lead by example. Employers should encourage open dialogue and constructive feedback to address issues before they escalate.

Changes to sexual harassment legislation

The Worker Protection (Amendment of Equality Act 2010) Act 2023 is expected to come into force on 26 October 2024. The Act creates a positive duty on employers to take reasonable steps to prevent sexual harassment.

It gives employment tribunals the power to uplift sexual harassment compensation by up to 25% if an employer is found to have breached the duty. Therefore, it is more important than ever that employers take proactive steps to prevent all forms of harassment in the workplace.

In summary, by proactively addressing matters and maintaining a culture of respect and inclusivity, employers can mitigate the risk of claims and create a positive working environment where employees feel valued and respected.

If you have any questions about employment or our BLHR service, please get in touch with the BLHR & Employment Team. We will be happy to discuss how we can help.