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Lessons from an Employers Costly Conduct

An employer has been ordered to pay over £50,000 after they lost a case for race and sexual orientation harassment and constructive dismissal.

This case offers two useful reminders for employers:

  • Firstly, that an employee can complain of harassment even if it relates to a protected characteristic they do not personally have. In this case, the employee was subjected to harassing homophobic comments and succeeded in his claim even though he is heterosexual.
  • Secondly, grievances should be heard by an appropriate person to ensure there is no bias. In this case, the employee’s complaints were about racial and homophobic abuse by the owner and it was suggested that the owners wife or her friend would hear the grievance. This was not a fair grievance process.

It’s also worth noting that £5,000 of the award made to the employee was for aggravated damages. This is an unusual award and is made where the employer’s conduct aggravated the hurt caused to the employee.

So, what happened in the case of Hoch v Thor Atkinson Steel Fabrication Limited?

The Facts of the Case

The employee, a white heterosexual South African, worked as a buyer for a steel firm. After about a year of working there the owner started to address him using racially offensive terms and using homophobic comments. This continued for a substantial period of time and the behaviour extended to the wider workforce. Comments from the owner included use of the N word and phrases including ‘f****** foreigner’ and ‘gay c***’.

The employee was offered a lower paying job with a different employer  and ultimately resigned citing the abuse he had been subjected to. The owner offered the employee a grievance hearing which would be conducted by the company’s HR Representative – who was also the owner’s wife. The employee refused to attend as he felt the hearing would be biased, at which point the HR Representative suggested her friend – a cleaner at another Company – as an alternative chairperson. The employee again declined to attend.

He complained to an employment tribunal that he had been subjected to race and sexual orientation harassment and that he had been constructively dismissed. The employment tribunal:

  • Found the employee’s rejection of the grievance meetings was reasonable in the circumstances. The suggestion of the owner’s wife or her friend to conduct the process was ‘clearly wholly inappropriate.’
  • Didn’t find that the comments were ‘banter’ as the employer had tried to argue.
  • Didn’t find the HR Representative (the owner’s wife) to be a credible witness. She claimed to be unaware of any racist language but yet had told her husband as part of a group chat he needed to stop doing that.
  • Found that the employee’s workload was becoming unrealistic and excessive, especially towards the end of his employment, forcing him to seek new employment.

Advice

It’s important for employers to take appropriate steps to prevent harassing behaviour from occurring in their organisation. Whether the owner in this case recognised his behaviour as harassment or not, that was clearly the case here.

So, what can you do to protect your organisation?

  • Ensure that all employees understand what harassment is and that it will not be tolerated so that they can avoid engaging in such behaviour.
  • Have a clear equal opportunities and anti-harassment and bullying policies and provide training to employees at all levels of the organisation.
  • Take prompt and appropriate action to address any complaint of harassment.

If an employee raises a grievance about harassment, it’s important to note who the complaint is about and consider who would be an appropriate person to manage the grievance process. For the process to be fair, it should usually be conducted by a manager of appropriate seniority / director who has had no previous involvement in the matter. Remember, you will usually also need someone different of appropriate seniority to hold the appeal, if one is made.

For small businesses, it can sometimes be difficult to ensure the separation of roles as there may not be enough appropriate people available. If this affects your organisation and you are unsure of who should manage a grievance process you should contact Kingfisher Professional Services Ltd for advice on your situation.

If you have an employment law matter you would like assistance with, please do not hesitate to contact us as we are happy to help.