Can inappropriate Whatsapp messages be used to justify termination and treat shareholders as bad leavers?

The short answer is yes, but not in the particular circumstances of this case, Wells and Solari v Cathay Investments and PNC Global Logistics.

In this case, the High Court assessed the extent to which a number of incidents of misconduct including obscene WhatsApp messages could be used to justify dismissal for gross misconduct, thereby classifying the two employees as bad leavers and depriving them of the market value of their shares.

While the content of the WhatsApp messages has been the element that attracted most of the media attention in this case, these did not feature in the rationale for the High Court’s decision. The wrongful dismissal was justified on other grounds, namely that the Claimants had disclosed highly confidential information inappropriately. While not necessary to determine its conclusion in this case, the High Court nevertheless had no hesitation in saying that obscene WhatsApp messages could amount to a material breach of an employment contract and gross misconduct in these
circumstances.

The two Claimants were not junior employees engaging in “banterous” conduct but senior executives who participated in an inappropriate WhatsApp group with junior employees. It mattered not that the two female employees were unaware of what was being said about them. The judge said that in a modern office environment this is not banter but wholly unacceptable, particularly when commenting on female colleagues, and this is something that a senior manager should neither be part of nor condone or permit.

This was not a case that examined unfair dismissal rules or company policies. We had anticipated that arguments around breach of privacy might be raised in relation to searching through a private WhatsApp group on a work mobile but arguments around privacy were absent in the judgment. The case was decided purely on contractual grounds surrounding several agreements including employment contracts. Generally, an employer will have its dignity at work, social media and disciplinary policies to rely upon as the basis for a finding of gross misconduct. And the more senior the employee, the higher the bar in expected standards of behaviour.

The take-aways from this case are not significant but it serves as a useful reminder for employers in two respects:

• dignity at work training for managers should include examples to illustrate that higher standards of behaviour are expected of those who have management responsibility for others, and are instrumental as culture carriers; and
• there does not need to be a “victim” to create an intimidating, hostile, degrading, humiliating or offensive environment. Behaviour of the type described in this case will suffice.