Mr T Donaldson v Southern Electric Power Distribution plc — 2025

The claimant, a Tree Cutter Surveyor employed from 17 May 2021, was dismissed after an investigation into WhatsApp groups used by him and colleagues. The tribunal found that the groups, including one called "Work Stuff Only" and another called "Banter", were used during working time and contained work-related messages mixed with material the respondent regarded as inappropriate. The claimant admitted sending a large number of offensive, discriminatory and pornographic items, including material referenced in the judgment as sexual, racist or ableist in character, and also admitted using language such as "cunt" and making other offensive comments in the work group.

The respondent charged him with sharing inappropriate WhatsApp messages and, as second in charge, failing to challenge inappropriate behaviour within the team. After a disciplinary hearing on 5 February 2024 and appeal hearing on 16 May 2024, the respondent upheld those allegations, but did not uphold an allegation that he had made inappropriate comments to a female colleague. The tribunal held that the respondent genuinely and honestly believed the claimant was guilty of misconduct, that the investigation was thorough and fair, and that the claimant had been given sufficient notice of the allegations, the evidence, and the chance to respond.

Applying section 98 ERA 1996 and the Burchell approach, the tribunal concluded that the respondent had reasonable grounds for its belief and had carried out as much investigation as was reasonable in the circumstances. It accepted that the claimant had received relevant diversity and inclusion training, knew the respondent's position on bullying, harassment and discrimination, and had himself referred in messages to the conduct being inappropriate. The tribunal also found it reasonable for the respondent to treat the conduct as gross misconduct, including because the messages were sent in work-related chats, there was crossover between the groups, and the claimant had not challenged the material despite being perceived by colleagues as having a more senior role.

On sanction, the tribunal held that dismissal was within the range of reasonable responses. It considered the claimant's arguments about the size of the respondent, alleged inconsistency with other disciplinary outcomes, the involvement of his manager, and the later roll-out of additional social media training, but concluded these did not make the dismissal unfair. The procedure as a whole, including investigation, hearing, outcome letter and appeal, was found to be fair. The claim for unfair dismissal was therefore dismissed and no remedy was awarded.