Worker who found racially charged messages in work WhatsApp group was harassed, tribunal rules

Experts say case highlights how employers can be held responsible for discriminatory conduct in the virtual work environment

An operations clerk was the victim of harassment because of her sex, race and religious belief after finding explicit messages in a WhatsApp group used by her co-workers, a tribunal has ruled.

The Watford Employment Tribunal ruled the contents of a group WhatsApp conversation used by employees of Deltec International Courier constituted harassment because it was unwanted conduct that had the effect of violating the dignity of Ms M Abdi. It found the comments created an “intimidating, hostile, degrading, humiliating and offensive environment” for her.

The tribunal heard Abdi is a black woman of Somali origin, and she wears a hijab. She worked for the courier as an evening operations clerk from 6 November 2017 until her resignation on 1 September 2018.

In August 2018, two new employees – Mr T Tripp and Mr O Rolls – started with Deltec International Courier. On 10 August, there was a discussion in the office between the claimant and her colleagues, during which the topic of white privilege was raised. Abdi said this discussion developed into an argument, which culminated in Tripp and Rolls telling her that “the majority of crimes in England are made by black people”. 

Shortly after this argument, Abdi, in the course of her duties, used a colleague’s details to log into her computer. After doing so, she saw a WhatsApp group including Tripp and Rolls, as well as her line manager, S Hocking. A number of offensive comments had been made including the term “f***ing immigrants”. Members of the group had also asked what “her” problem was and for someone to “shut this terrorist up” before they “rip her headscarf off”. The tribunal heard the conversation was littered with smiling and laughing emojis, and emojis of women wearing the hijab.

The tribunal accepted that these comments were made about Abdi and another female colleague.

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The tribunal heard the offensive comments on the WhatsApp discussion were made between 4.44pm and 6.04pm, which was around or after the time of the office discussion relating to crime and race. Abdi said she saw these exchanges between her colleagues and took a screenshot of them.

Abdi told the tribunal that she complained to Hocking about the discussion relating to race and crime, but she did not mention the WhatsApp conversation. He did not take the complaints seriously, telling Abdi that it was a ‘he said, she said’ scenario. 

Abdi said she logged into her colleague’s computer again on 14 August, and she noticed that the WhatsApp chat had continued. She then reported the WhatsApp discussion to Deltec International Courier on 16 August by email.

The email was forwarded to Mr Cunningham, chief executive of Deltec International Courier during Abdi's employment, who acknowledged the contents of the WhatsApp discussion were extremely inappropriate, and included derogatory and deeply unpleasant comments about Abdi and another female colleague. 

The tribunal heard that Cunningham decided to lead the investigation into the WhatsApp discussion, and he told the tribunal that he met with Abdi and her colleague on 17 August. He said he told them that he was aware of the allegations and that he would take appropriate action. 

Cunningham said he met with Hocking to discuss the allegations. Hocking provided a letter to Cunningham addressing his behaviour. And, following the investigation, Hocking was issued with a final written warning as he was a “long-standing employee”. Another employee also involved in the conversation was treated similarly. 

Both Tripp and Rolls were dismissed on 20 August. The tribunal heard both workers were still in their probationary periods, and Cunningham took the decision that they were unsuitable employees for Deltec International Courier.

Cunningham met with Abdi on 22 August, and Abdi explained the background to Cunningham, including the conversation relating to race and crime. Cunningham said he apologised to Abdi and told her that the behaviour of those concerned was unacceptable and that the business had taken appropriate action.

But Abdi resigned from her position with immediate effect by email on 1 September 2018. 

In her ruling, Judge Louise Skehan said the office environment in which Abdi worked was “chaotic and juvenile as described by the claimant” and “one in which inappropriate language was commonplace”.

She added that the content of the WhatsApp discussion constituted harassment in that it was “unwanted conduct that has had the effect of violating the claimant’s dignity and creating an intimidating, hostile, degrading, humiliating and offensive environment for the claimant”.

Other claims of equal pay were dismissed.

Carl Atkinson, partner at gunnercooke, said the circumstances of this case should demonstrate to employers how the distinction between work and private life was becoming less distinct. “This decision is no surprise given the law that establishes that an employer can be responsible for comments made by employees at a social function outside work, and the case really just highlights that the same issues can arise in virtual conversation,” he said.

As many businesses moved to a remote and virtual working environment over the past months, there was an increase in the use of tools such as WhatsApp and Slack to work collaboratively, Atkinson added, warning: “This issues in this case demonstrate that businesses can be responsible for discriminatory conduct that occurs in the virtual work environment in just the same way as they can be responsible for discrimination in ‘real life’.

“I suspect that there may be greater risk of casual discrimination occurring in a virtual environment where conversation tends to be less formal and instinctive, and there is less visual/non-verbal communication.” 

Abdi could not be found for comment, and Deltec International Couriers has been contacted for comment. 

A remedy hearing has been set for 13 January 2021.