‘A case about humour at work that has gone wrong’

when-humour-workplace-goes-wrong-discrimination

Reed v CF Fertilisers UK Limited is an employment tribunal case which the judge described in the introduction as “a case about humour at work that has gone wrong”. Simon Robinson, Partner at Gunnercooke LLP takes a look at the case and offers suggests as to how employers can mitigate the risks of a claim.

Facts

Simon Robinson, Partner at Gunnercooke

The Claimant worked on a site which had a workforce which was roughly 95% male. There was swearing and jokes between colleagues which was “close to the knuckle”. He had worked for the Respondent for nearly 20 years, was well liked, hard-working and had a clean disciplinary record. He had completed “Respect at work” training which included the phrase: “The same behaviour may be inoffensive to one person and deeply inoffensive and intimidating to another, unintentional or misinterpreted behaviour may cause feelings of harassment”.

He brought a mug into work to cheer up his friend and colleague. It was referring to his ex-girlfriend. On the mug, he had written a graffitied conversation between two cartoon owls (details are on p.2 of the Judgment here). Once he gave it to his friend, he didn’t know what happened to it and thought his friend had taken it home.

A female consultant who was working alongside the Claimant and his colleagues saw the mug in a cupboard when she went to make a cup of tea. She made a written complaint because she found the wording offensive and because she thought the mug was aimed at her given she was tall and there was a perception that she could be making redundancies.

An investigation was undertaken by the Respondent. The Claimant was described by colleagues as having “a heart of gold.. a grafter and would never upset anyone”. He and his friend “joked about” and “their humour could be close to the knuckle”.

Disciplinary hearing

The Claimant was immediately apologetic about the mug and told the disciplinary hearing that he agreed that the words on the mug were “inappropriate and unacceptable. It contravenes company standards”. He said he was “sincerely sorry… wouldn’t want to upset anyone… it would never happen again” and if he had seen the mug at work, he would have brought it home.

The Respondent accepted that the Claimant had not been targeting the consultant but dismissed him summarily for bringing offensive material to work, which had been noted as an allegation on the disciplinary invite letter and was noted as the reason on the disciplinary outcome letter.

The hearing officer considered other sanctions but “considered the gravity of the words used was such that dismissal was appropriate”.

The appeal hearing was presented with numerous positive character references for the Claimant but rejected the appeal and the Claimant lodged a tribunal claim for both wrongful and unfair dismissal.

The tribunal hearing

The wrongful dismissal claim failed because the judge decided that the wording on the mug was “not borderline material” but was “objectively offensive” and “bringing that offensive material into work was fundamentally incompatible in a grave way with [the Claimant’s] contract of employment”.

The unfair dismissal claim also failed because, despite the mitigation, the judge decided that dismissal was within the range of reasonable responses, even though “some employers would have taken a very different approach … and imposed, perhaps a final written warning”.

Miscellaneous arguments

The fact that the Claimant was not suspended when the allegations were made showed the Respondent did not believe the allegation was a serious one. The judge rejected this by noting “if the Respondent had suspended the Claimant, it might well have faced an argument that [dismissal] was a foregone conclusion”.

The real reason for the Claimant’s dismissal was “because of his potential to benefit from generous severance terms should be dismissed in the future”. The judge rejected this and accepted the disciplinary hearing officer’s reason for dismissal.

The Claimant had not been provided with the consultant’s complaint letter prior to the disciplinary hearing. The judge found this was not significant because “the telephone statement of the conversation between the consultant and the investigation office was provided to the Claimant. It was easily clear from that note that she had previously provided a written complaint and it could have been sought at the stage by the Claimant’s union”.

The disciplinary hearing officer had not made the decision himself. The judge rejected this and accepted the disciplinary hearing officer’s evidence.

How can employers mitigate the risk of a claim?

Have clear policies on equal opportunities and harassment which sets out what is unacceptable and the potential sanctions for breaching the policies.

Train employees on the policies.

Keep a record of the training and require those who attend to sign and date their attendance.

Think carefully about whether or not suspend an employee during a disciplinary investigation, explain your reasoning to the claimant and record it in a letter to the employee.

Make sure the invite letter to the disciplinary hearing accurately sets out all the individual charges, which are alleged acts of gross misconduct, and the potential outcome if any or all the charges are upheld: “You may be dismissed” NOT “ You will be dismissed” which suggests predetermination. The letter should also include a copy of all the evidence which is to be considered and notify the employee of their right to representation. The letter should be sent far enough in advance of the hearing to give the employee the chance to prepare.

The hearing officer should prepare for the hearing by carefully reading the evidence and the relevant policies, preparing questions to ask the employee and carrying out further investigation if it is clear that it is needed – even if that requires the hearing to be postponed. Any further evidence should be sent to the employee before the hearing.

The importance of good hearing notes cannot be overemphasised. Ideally, the hearing officer shouldn’t take the notes as it disrupts the flow of the hearing and questions and answers may not be recorded properly. There should be a separate note taker, and not just the first person who is available on the day – it should be someone who can write quickly and accurately capture the questions and answers.

The hearing officer should check the notes after the hearing and then get the notes signed by the Claimant (and their representative, if there is one) to prevent any future disputes about what was said.

Ensure the outcome letter from the disciplinary and appeal hearings record the hearing officer’s thought process, including: (a) what mitigation was taken into account and why it was insufficient; and (b) what alternative sanctions were considered and why they were rejected.

The appeal hearing officer should not be afraid to conduct further investigations and/or overturn the disciplinary hearing outcome if that is the right decision. The appeal hearing is not a rubber-stamping exercise.

Both hearing officers should adjourn after the hearing to carefully consider whether the charge is upheld and, if so, what sanction to impose. No adjournment or a short adjournment suggests either no real thought went into the decision or the decision was pre-determined.

Neither hearing officer should ask someone else what the outcome of the hearing should be or be put under pressure to dismiss or use the allegation(s) as an excuse to dismiss for another reason e.g. there’s an impending redundancy process which would result in the employee receiving redundancy pay; the employee has a poor sickness absence record (perhaps disability related) which is it is not as easy to dismiss for; or the employee is a general pain who the company has wanted rid of for years but haven’t had the opportunity.

Back to the case for a moment and here’s an unanswered question: What happened to the Claimant’s friend and colleague? If he was the one who put the mug in the cupboard, then surely he was as culpable, arguable more so as the Claimant thought his friend had taken the mug home?

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