You Must Be Joking!

A bit of fun in the workplace can contribute to a positive workplace culture, but what if it involves jokes that go wrong or someone takes it too far? There have been a couple of employment tribunal decisions this year involving ‘practical jokes’ in the workplace, but the issue is not a new one for employers. So, is there anything that can be learned from some of the employment tribunal cases in this area?

  1. Unfair dismissal is no laughing matter…

In Buchholz v Geze as part of a running joke with colleagues an employee staged sherbet and straw on his desk to look like drugs and drug-taking paraphernalia…where they were later found by a contract cleaner and reported to management. An investigation and disciplinary process was carried out, the employee was dismissed for damaging the employer’s reputation. It was believed the prank could have been put on social media and the message conveyed the employer condoned drug use. The employee’s appeal was unsuccessful.

Unfortunately, the joke ultimately backfired on the employer, as the employment tribunal found the employee had been unfairly dismissed holding that no reasonable employer would have concluded that the employee’s actions merited dismissal in the circumstances. There had been no reputational damage, the matter had never been circulated on social media or otherwise and the risk of this occurring was low as everyone involved understood from the outset that the set up was likely to be a joke. The employee had 14 years’ service, no live disciplinary warnings and had apologised to the cleaner. Furthermore, there was a failure to follow a reasonable process when the investigating officer also conducted the disciplinary hearing when it could (and should) have been held by another manager in the interests of fairness.

Takeaway: It’s important not to rush to reach the ‘punch line’ when it comes to workplace jokes – remember action needs to be reasonable in the circumstances. When thinking about the process itself, remember that different people of appropriate seniority will usually be required for the investigation, disciplinary and appeal stages.

  1. “Only joshing”… or is it more than that?

In Hurley v East Sussex Healthcare NHS Trust an employee who was already suffering from stress was tricked by her line manager into stopping urgent work and preparing for a fake presentation as a practical joke. The manager sent the employee an email mid-morning reminding her of a three-hour presentation that she was to deliver to the senior management team the next day. To make the joke seem more real, the employee’s manager persuaded other colleagues to corroborate her story. The employee left work at 4 pm still believing she had to deliver the presentation and that she would be up all night preparing. Shortly after this, her line manager sent her an email saying: “Only joshing!!!! Have a great day.”

Soon after, the employee was concerned about various other issues and raised these and the joke presentation with her manager. There were then a series of incidents, which amounted to a pattern of bullying. She eventually resigned and successfully claimed unfair constructive dismissal.

Takeaway: It’s important to be clear about what is acceptable behaviour in the workplace. What employees (and managers) may think of as a joke or just a bit of banter can overstep the mark and become bullying or harassment.

  1. Employers can be liable for employee’s actions…

In Otomewo v Carphone Warehouse two members of staff took a heterosexual manager’s phone without his permission and updated his Facebook status to say: “Finally came out the closet. I am gay and proud.” The employees knew that their manager was not gay. The manager was embarrassed and distressed by the status update because the comments were in public view and could be seen by friends and family. He complained to an employment tribunal that he had been harassed on the grounds of sexual orientation. The tribunal agreed, finding that the employer was vicariously liable for the employee’s actions  –  the entries had been made by the employees in the course of their employment, their actions took place at work and during working hours, and involved dealings between employees and their manager.

Takeaway: To help prevent harassment from happening it’s important that clear policies are in place and employees and managers are given appropriate anti-discrimination and harassment training. When it comes to an employer defending a harassment claim at tribunal, it will be vital to show that they took all reasonable steps to prevent the employee from acting in a harassing way.

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