Sushi kiosk boss who WhatsApped colleague after midnight sued for harassment

A businessman was sued for harassment after he sent a WhatsApp message to a colleague after midnight.

Hemanta Mainali, a Waitrose sushi chef, was furious at being woken up in the early hours of a Saturday morning, an employment tribunal heard.

He claimed the message from Sumin Lohani had been sent directly to him - not within a group chat - and was a “deliberate attempt to disturb him” and even “encourage him to leave”.

He responded to Mr Lohani by saying it was “very wrong” to bother him at that time of night, replying to the message “Go f--- yourself”.

The two men owned a sushi kiosk at Waitrose in Godalming, Surrey, with Mr Mainali owning 30 per cent and Mr Lohani owning the rest.

The tribunal heard that Mr Mainali’s working relationship with Mr Lohani had deteriorated so badly that a fortnight later, the pair ended up having a violent confrontation in public at the sushi counter of the upmarket supermarket.

He ended up leaving the business and sued Mr Lohani, claiming he had been forced out as part of a deliberate campaign.

Judge throws out case

However, his case has been thrown out after a judge ruled that Mr Lohani had not meant to disturb him on purpose by sending the message after midnight.

The Watford hearing was told the pair had known each other since childhood and they had both come from the same village in Nepal.

The chef started working at the supermarket in June 2018 and was paid £1,500 a month, the tribunal heard.

However, the friendship between the two became “strained” in January 2020 when Mr Lohani sent a rota for the upcoming week to several employees via WhatsApp in the early hours of a Saturday morning.

The tribunal heard: “On 4 January 2020, at about 00:29, Mr Lohani sent out the rota for the following week. He sent it to the employees of (the company) who would be working at the kiosk that week, including (Mr Mainali).

“He sent it via WhatsApp. He did not send it to (Mr Mainali) only. He did not choose the time of sending to annoy (Mr Mainali) or anyone else.

“He had thought that people would read the message when convenient to them, and had not expected them to read/respond straight away (and no response was necessarily required, unless there was a problem working the specified shifts).

“(Mr Mainali’s) phone made a sound when this message was received. That had not been Mr Lohani’s intention; he had simply given no thought to that possibility. (Mr Mainali) and his family were asleep, and were disturbed by the phone alert.”

The tribunal heard he angrily responded, “This is very wrong to post at midnight. Go f--- yourselves|”, to which Mr Lohani replied, “Watch your mouth, I didn’t ask you to check now”.

Several weeks later the two had an angry confrontation at the sushi counter.

Mr Lohani accused Mr Mainali of “becoming very aggressive and trying to punch him” while holding a knife in his hand, while the chef said his business partner tried to headbutt him while “block[ing] his escape route”.

Confrontation at sushi counter ‘exaggerated’

The tribunal found that both men’s account of the incident was exaggerated and only involved some “pushing and shoving”

“Between the two of them before matters became too overheated, there was a realisation that having a very aggressive interaction in Waitrose during opening hours was not sensible for themselves as individuals, or for their business venture,” the panel found.

The hearing was told Mr Mainali left the business - New Godalming Sushi Ltd - at the end of the month.

He took the company to the tribunal claiming to have been the victim of a “campaign” to force him out of his job.

Mr Mainali said he had been discriminated against due to “mental health issues which include anxiety, insomnia and panic attacks”, and claimed he had been “bullied and verbally abused in front of staff”.

However, his complaints of harassment and disability discrimination were dismissed.

Of the early hours Whatsapp message, Employment Judge Patrick Quill said: “(Mr Mainali) suggested that the WhatsApp message of 4 January was a deliberate attempt to disturb him, and perhaps encourage him to leave. We find that that is not the case.

“Even if (he) is right in his belief that it was sent to his own contact address, not just to the group contact address, that does not indicate that he was being targeted or deliberately disturbed at night.

“As a co-owner of (the business) and somebody also responsible for drawing up rotas, there is nothing suspicious about the item being sent to him directly (if that was in fact the case).”

However, Mr Mainali’s complaint that he was forced to leave without his contracted six months notice period was found by the tribunal to be a breach of contract.

He is entitled to damages, and the parties have been left to agree an “appropriate sum” among themselves.