An employee at a property management company reached her first year work anniversary. This was not commemorated on the company WhatsApp group chat. Others’ work anniversaries had previously been acknowledged in that manner. One possible reaction: “I’m upset”, or words to that effect. Another: “I’m suing you for pregnancy and age discrimination and harassment.” Really?
Let’s have a closer look at the tribunal claim report in Nunn v HES Estate Management. For a touch of context, Ms Nunn’s work anniversary was 11 August 2023. She had let it be known that she was pregnant ten weeks earlier, having been aware this was the case since late March. Despite criticisms of her work around that time, she had evidently not been minded to break her happy event news for a touch of perspective.
A month before the work anniversary, the directors had decided to restrict company WhatsApp announcements to birthdays, in order to reduce the volume of messages. Ms Nunn’s work anniversary came and went. Two weeks later, she received an internal note of a “pull your socks up” nature, expressly confirmed not to be a formal warning. A month later, a grievance that she had submitted in parallel was mostly rejected, save for a complaint about a mention of her age rather than her experience. Then came her maternity leave. A year passed. Having initially indicated her intention to return, she changed her mind and resigned, starting with a new employer a month later. The claim soon followed.
The WhatsApp complaint was included as one of four heads of Ms Nunn’s claim for pregnancy discrimination and harassment. If it comprised unfavourable treatment, the tribunal would have to decide whether it took place in or related to a protected period; whether it was because of the pregnancy; or whether it was because of pregnancy related illness.
It did not take the tribunal long to reject the claim of unfavourable treatment. Leaving aside the fact that the WhatsApp practice had been ended for good reasons, such anniversary messages, it was observed, were not an entitlement. They would have been – wait for it – more favourable treatment. A failure to treat an employee more favourably than they might have been treated was not in itself unfavourable treatment. An echo, perhaps, of the observation that refraining from doing wrong is not to be equated with doing right?
Ironically, Ms Nunn had used the company WhatsApp group chat a month before her work anniversary in an attempt to find out which of her colleagues had complained about her loud use of a taboo profanity to describe a client. The message came back that it was all of them…
Are you in need of a review of workplace social media policies? Do you have a live issue relating to workplace social media that needs to be resolved before it escalates? Get in touch. Contact David Cooper on 07450 350715 or via david@wolverhamptonemploymentlaw.co.uk .
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