‘Childbirth vs Kick in the balls’ sexual harassment case shows need for clear work WhatsApp guidance

Sally Tomlinson, legal director in our employment law team in Manchester, examines a recent employment tribunal case with big implications and offers guidance to employers as tighter harassment regulation looms in October 2026.

Harassment is generally defined within section 26 if the Equality Act 2010 as being where a person (A) harasses another (B) if person A engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of (i) violating person B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for person B.

A recent employment tribunal case in Birmingham has found that comments made in a work WhatsApp group suggesting that being kicked in the testicles is more painful than childbirth did constitute sexual harassment.

It’s a case that serves as a timely reminder about the steps employers need to take to protect their staff from harassment, especially as new rules coming into effect in October under the new Employment Rights Act will widen the scope of potential harassment claims to involve harassment of employees by the actions of third parties in respect of all protected characteristics, not just those who work for the employer.

What happened in the case?

In the company WhatsApp group of an electric vehicle manufacturer, a male employee shared a message relaying that the fact women chose to have subsequent babies was proof giving birth is less painful, adding that you would never hear a man say they “wouldn’t mind another kick in the bollocks”. The message was stated to be directed at the claimant (also an employee and member of the work WhatsApp Group) who was pregnant at the time and was experiencing a difficult pregnancy.

The tribunal heard how the message received several thumbs up reactions, including from the claimant’s own line manager. The employment judge found the message (and her line manager’s ‘thumbs up’ reaction to it) constituted harassment related to sex, stating it was “crude and made light of the claimant’s circumstances and the risks [the claimant] faced”.

The claimant was “very upset” and felt “hurt and belittled” by the “ill-judged attempt at humour”, the judge added. He highlighted that the claimant had a difficult pregnancy and was “anxious about her unborn child and the prospect of her impending labour, which was only two weeks away”.

An earlier comment (this time made in person) by another male employee in response to the claimant’s concerns about her baby bump not growing was also judged to have constituted sexual harassment. The employee had told the claimant “Never mind the bump, the boob fairy hasn’t been either”.

While the judge recognised that the claimant’s colleague did not intend his comment to be hurtful, he said it “plainly was”, describing it as “entirely gratuitous”. “The claimant felt insulted, disgusted and objectified,” the judge added. “At a time when she was sharing her pregnancy and concerns, a senior manager was focusing on and judging the size of her breasts.”

However, the claimant’s claims of direct sex discrimination, pregnancy discrimination and detriment, and unfair dismissal all failed.

The lessons and implications for employers

A reminder that ‘intention’ of the perpetrator is not always the deciding factor

The main point to make here is that what constitutes harassment of any form is both subjective and objective, so it doesn’t necessarily matter whether somebody intended to offend or harass someone. The question will remain as to whether a comment has the effect of being offensive, intimidating, hostile, degrading or humiliating to the victim and whether, on balance, it is reasonable in the circumstances for the actions to have that effect.

The perception of the person who receives the behaviour, comment or message is taken into account. As the judge in this case recognised, the claimant felt vulnerable because of her concern about her unborn child’s growth and the fact the birth was coming up. This was a fact that had been previously relayed to a colleague.

It must be noted that harassment can be deemed to have occurred at any point during the employment of an individual. Harassment can occur when discovering what topics may be considered objectionable to an individual. On the other hand, even if an individual has previously participated and joined in with similar conversations or conduct this does not mean that a situation cannot occur where the actions taken are unwanted and as such is considered as overstepping the boundary by an individual.

People overlook the varying degrees of tolerance people have and the effect a comment can have on someone else. For employers, to be in a position to effectively defend harassment claims, it boils down to having in place the right guidelines and training so that colleagues understand what constitutes acceptable behaviour and what does not, and also that such policies are effectively enforced by employers.

Clear guidance needed for WhatsApp work messaging

The case also shows how the use of group communications platforms like WhatsApp in the workplace heightens the risk of ‘banter’ becoming harassment. The informal chat-based nature of WhatsApp, and ability to quickly share third-party content and ‘memes’, can often blur professional boundaries, leading to behaviour that can be construed as excluding others or being discriminatory or bullying.

WhatsApp messages are being cited more and more in employment claims because it provides documented evidence. If a comment is made verbally in the workplace, it often becomes a case of ‘he said, she said’ and a reliance on witnesses, but with WhatsApp the evidence is written down for all to see. It can be documented in screen grabs, even where messages or chats are deleted.

It’s so important for employers to have guidelines for the use of work WhatsApp groups (and other instant messaging channels – such as Teams and Slack), not just for preventing harassment and discrimination, but a plethora of other reasons. Employers should implement clear policies that explicitly set out expectations for professional communication, educate staff on the risks of using such platforms for work communication, and monitor usage so they can intervene quickly if inappropriate usage occurs.

This should be backed up with a clear message that breaches of such policies could result in disciplinary action. This will help demonstrate that an employer is taking active steps to prevent harassment in the workplace.

Employers should prepare for the new laws in respect of third party harassment

The ongoing roll out of the government’s Employment Rights Act 2025 means that from October 1, 2026, employers could also become liable for third party harassment of their staff (not just sexual harassment but in relation to all other protected characteristics to include disability, sexual orientation etc.), as a result of actions of their customers, clients and suppliers, if they fail to take “all reasonable steps” to prevent it.

This means employers already need to be reviewing, implementing and evidencing how they are taking proactive steps to prevent third party harassment in the workplace. Some practical steps employers should be taking are:

• Policy: Implementing robust anti-harassment policies covering third parties
• Training: Training managers and staff to recognise, report and deal with third-party harassment
• Assessing risk: Identifying high risk areas of the business, such as staff in customer or client facing roles.
• Reporting: Creating and publicising channels and procedures for confidential reporting of incidents
• Showing leadership: Demonstrating how the organisation will act immediately and robustly when incidents are reported
• Reviewing contracts with customers/clients/suppliers: To include positive obligations to treat staff with dignity and respect

If you would like more information or advice around this topic, please contact us.

We will be publishing updates as the Employment Rights Act legislation beds in and if you would like to discuss these changes, or any others you may be concerned about, please contact us by calling 01772 258321 and asking to speak to a member of the employment team or by emailing [email protected]

We are working with a number of clients to audit their current ERA position and develop bespoke action plans; if this is of interest to you, please get in touch.

The content of this article is provided by Harrison Drury Solicitors for general information purposes only. It does not constitute, and is not intended to constitute, legal or professional advice and should not be relied upon as such. Specific legal advice should always be obtained before taking, or refraining from taking, any action in relation to any matter discussed in this article. If you require advice in relation to any of the issues raised, please contact a member of the Harrison Drury Employment & HR team.