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To text or not to text

Adrian Fryer

Adrian Fryer

Is it harassment to text a colleague in the wee small hours? Not accordingy to nkojihuy790- Mainali v New Godalming Sushi Limited. Mr Mainali was a sushi chef in business with a colleague, Mr Lohani, to provide sushi at Waitrose. Me Lohani was the main shareholder in the business. Relationships deteriorated. Mr Lohani sent a rota to staff on a group WhatsApp after midnight. Mr Mainali was furious, saying it was wrong to bother staff at that time of night. He told Mr Lohani to ‘go f*** yourself’.

Relations further deteriorated, including a scuffle on Waitrose shop floor. The employee left the business. He brought claims in the employment tribunal for discrimination, saying the late-night message had been a deliberate attempt to disturb him and persuade him to leave his job. The tribunal didn’t agree. The judge accepted that the rota was sent in a group chat, rather than to the employee only. They also accepted Mr Lohani’s evidence that he had no intention to disturb and expected colleagues to read the rota at their leisure.

Even in dramatic cases with obviously unreasonable behaviour by an employee, there is some learning. Employers, and managers in particular, should seriously consider the timing of messages sent to employees, especially communications made to private phones. In this case, the facts did not support the employee’s claims. However, in other cases, late-night messages to private mobiles could be construed as oppressive. Make sure messages are sent to work email accounts if possible. Tell employees they can (and should) switch off work devices outside work hours. Ensure managers know the potential pitfalls associated with overstepping the divide between home and work.

Adrian Fryer, Partner & Head of Employment

t: 0151 224 0539