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WhatsAppening here? Tribunal determine that preventing an employee on maternity leave from accessing the work group chat is discrimination.

February 9, 2024

Technology has undeniably transformed the way we navigate our personal and professional lives.  Bringing the whole world to our fingertips, mobile phones in particular have changed how we communicate. I’m sure many of us are part of (at least) one or have been at various points in our lives. It’s the easiest way to share little bits of information with your colleagues and staff, quickly, conveniently and with minimal disruption to everyone’s days. However, amidst the convenience lies a cautionary tale—one that emerges from the recent legal case of Ladd v Lily Head Dental Practice Sales Ltd. This case serves as a stark reminder of the potential legal minefield that accompanies the management of digital communication channels in professional settings.

What happened?

Ms Ladd is a sales negotiator for Lily Head Dental Practice and has been since 6 October 2018. The employer is a small dental brokers company with around 10 employees and no on-site HR specialist. Ms Ladd went on a period of maternity leave which began on 18th January 2021 and was due to return to work on 14th March 2022. Unfortunately, shortly before Ms Ladd was due to return to work, she suffered a bereavement which resulted in her submitting a fit note from her doctor in relation to her mental health and not returning to work.

Around 5 days after Ms Ladd submitted her fit note, CEO of the Dental Practice and administrator of the work WhatsApp group chat, Abi Greenhough, removed Ms Ladd from the work WhatsApp group. Ms Ladd contacted Ms Greenhough to ask why she had been removed from the group chat. Ms Greenhough responded and asked if Ms Ladd would like to be added back into the group chat. Ms Greenhough advised Ms Ladd that she could be added back into the group chat as soon as she was ready. Ms Ladd replied that it would have been nice to have been forewarned of her removal but did not ask to be added back into the work WhatsApp group chat at this time.

Notably, the tribunal considering this case found that this aspect of the employer’s conduct was reasonable. They found that in particular Ms Greenhough had acted appropriately in offering to add Ms Ladd back into the group chat as soon as she became aware that Ms Ladd may want to be included again.

Ms Ladd then lost her work mobile phone in February 2023 but only reported it as missing to her employer on 12th July 2023. She requested a replacement work phone or SIM card so that she would be able to access the work systems and WhatsApp group chat again. The employer refused to replace Ms Ladd’s phone or provide a SIM card for her and as of the date of the hearing Ms Ladd had not regained access to the work WhatsApp group chat.

What was the decision?

While the tribunal concluded that the act of removing Ms Ladd from the WhatsApp group chat in March 2022 was appropriate and did not amount to any kind of discrimination, it determined that the later refusal to allow Ms Ladd access to the WhatsApp group chat did amount to unfavourable treatment. The Tribunal came to this conclusion for two main reasons:

1. Ms Ladd felt isolated from her employer by being excluded from the work WhatsApp group chat, and

2. Ms Ladd was prevented from accessing personal content which she had shared on that group chat, including pictures of her family and her husband holding her ‘bump’.

Her employer argued that their records showed that Ms Ladd had left the group voluntarily on the 7th June 2023. However, Ms Ladd reported that she had lost her work phone prior to this point and so it couldn’t have been her that left the group chat. The tribunal found that even if Ms Ladd had removed herself from the group chat on 7th June 2023, the fact that she contacted her employer after this date asking to be given access should have prompted her employer to act. The refusal of her employer to give her access at this point caused Ms Ladd to suffer unfavourable treatment and detriment.

In regards to feeling isolated, the tribunal noted this may be welcomed by some, but it may not be by all. The decision also speaks specifically about the nature of WhatsApp group chats and other messaging platforms, stating that individuals can choose whether to engage in a work group chat or not but that a unilateral decision on the part of the employer to remove an individual on maternity leave from a work group chat has the effect of isolating them from their colleagues.

What can we take away?

The facts of this claim show the nuance of the legal position here. The removal of Ms Ladd from the WhatsApp group chat was not an issue because Abi Greenhough made it clear that if Ms Ladd wanted to be added back in she could be (although it is probably advisable to have a conversation with your employees beforehand if you are going to remove them, even if you view it to be for their own good). Employers should be mindful that where an employee goes on maternity leave they may, by choice or circumstance, feel isolated from their employer and colleagues. While the duty does not seem (at this stage) to extend to making an active effort to prevent this, they should act promptly if a request to be reintegrated is made by that employee.

The nature of online group chats and the way it facilitates the meshing of personal and work life can add complexity to the situation. Employers should be diligent as it is yet another area to consider when looking to ensure inclusivity in the workplace. This particular case shows the risks to the employer of preventing access to the group chat to an employee who has a protected characteristic and demonstrates the importance of keeping in touch and being open to including employees on maternity leave in workplace events and communications.

If you have any questions on this on any other area of Employment law, please get in touch with Blackadders Employment Team, working in Aberdeen, Dundee, Edinburgh, Glasgow and across Scotland.

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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