A WhatsApp group of Special Enforcement Officers ranted about their manager and colleagues. Insults such as "berk", "hog", "idiot", "downer" were reason for dismissal with immediate effect by their employer. Yet the court reversed this. However, sexual harassment by the female manager of a childcare organization on WhatsApp was not acceptable. Why this difference?
Employers must provide a safe work environment. That includes an environment where people , where there is no room for sexual harassment or racism.
Many companies have their own WhatsApp group. Sometimes for the whole company, sometimes for just one department. Often, work and private messages are mixed up in this. What used to be dealt with verbally during breaks is now written down. And then it becomes all the more clear that not everyone chooses their words with the same care. This can have far-reaching consequences, also because in the current #Metoo era, the standard is shifting on what is and what is not acceptable. Is an employer allowed to dismiss employees based on remarks in a group chat? Does it make a difference whether it is a professional or private group? Below are five points of interest based on recent rulings.
1. Work or private?
It does make a big difference whether the WhatsApp group is a work or private group. The line is sometimes hard to draw. For example, a group of close employees can create their own WhatsApp group, in addition to the official work WhatsApp group. This is considered private, but messages in the group chat can still have consequences for relations at work.
2. Is the employer allowed to look into a private app group?
In principle, the employee is entitled to privacy. Thus, the employer is not allowed to read WhatsApp messages from a private group without asking the employee's permission. When a municipality received the messages from a group chat of Special Enforcement Officers on a USB device, it should have asked permission first. This is different if the group chat also includes work-related messages. This was the case here and, therefore, the municipality was eventually allowed to read the messages without permission.
3. Who reads the messages?
Generally speaking, the larger the group, the more likely it is that messages of abuse and racist or sexist remarks will be a ground for dismissal. The employment contract of an employee who expressed criticism on his manager and the company policy in an inappropriate way and sent it, accidentally or not, via WhatsApp to all employees of the company, was terminated by the court for this reason.
However, the Special Enforcement Officers were not to be dismissed. It was a small group of friends that had created the App group "Panic" to blow off steam after one of them had been attacked at work, and there were no indications that they had misbehaved outside the WhatsApp group as well. The same applied to a WhatsApp group of workers in the port of Rotterdam.
For a female manager of a childcare organization, however, there was no excuse. The Amsterdam Court of Appeal ruled - in contrast to the Subdistrict Court - that the statements made in a group chat of managers were sufficient in themselves to justify dismissal. She had written, for example, that she would have "shat in the mouths of [members of the Supervisory Board] a long time ago". It was not necessary for her to express herself equally uninhibitedly outside the WhatsApp group and to shout in the corridor whether there was anything "to shag". The dismissal was self-inflicted and she was not entitled to transition compensation.
4. Hearing both sides
It is important that, no matter how serious the allegations, the employee is given the opportunity to defend himself. That was the reason why the manager did receive fair compensation. She was surprised with an investigation report on her behaviour and immediately suspended. Afterwards, a great number of colleagues was also informed about the suspension and the reason for this.
5. Has the employee been warned and his behaviour changed?
The heavier the remedy, the tougher the demands made by the court on the employer. A company in the port of Rotterdam discovered this when it dismissed an employee with immediate effect after two colleagues had complained about racist messages in a private WhatsApp group.
Despite a clearly communicated policy and courses offered by the company to ensure a safe and secure working environment, the dismissal with immediate effect did not last. Among other things, there was no conclusive evidence that the employee had continued to send the contested messaged after complaints in the group chat. In addition, he had later apologized and there were no signs that the colleagues no longer felt safe at work due to the messages.
Originally Published 16 March, 2021
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
