£175,000 pay-out for homophobia in the workplace
An engineer has been awarded nearly £175,000 after he suffered harassment and discrimination at work after revealing his sexual orientation.
The employment tribunal ruled that the employee who was a quality manager was harassed and directly discriminated against because of his sexual orientation. It also found he was victimised and that subjected to detrimental treatment for seeking to take additional adoption leave. All this contributed to his constructive, unfair dismissal.
The employee faced numerous homophobic comments after his sexuality became common knowledge in his workplace, including “limp-wristed” hand gestures directed towards him, being called “camp” and being sent an email depicting two stereotypical gay characters with comments directed towards him.
The Claimant believed that he was in line to be promoted to General Manager, but when he came out at work and made enquiries into adoption leave because he and his husband were looking to start a family, he felt that there was a shift in attitude towards him.
He said that his employer did not make him a general manager because he was “going to be off for 12 months with parental leave”, and he felt he was “forced to choose between whether we become parents or whether I had a job”.
After he was passed over for promotion he said that his sexual orientation was commonly known in the workplace and that he faced a string of homophobic incidents from colleagues. He felt he had no choice but to leave and brought claims of discrimination based on sexual orientation, unfair dismissal, victimisation and that he was subjected to a detriment because he sought to take additional adoption leave.
The Employment Tribunal judge found that he had been “subject to harassment related to sexual orientation” and was passed over for promotion “because he sought to take additional adoption leave.”
The Claimant was awarded £23,874 for unfair dismissal, £26,300 for injury to feelings, £70,345 for loss of earnings with interest, £18,078 for failure to follow the Acas Code of Practice on Disciplinary and Grievance Procedures and £36,048 “grossing up” to take into account the tax payable – totalling £174,645.
Protecting confidential company information
In a UK study of 2,000 workers, 24% of respondents admitted to email misuse and purposely sharing sensitive business data over email.
Confidential corporate data can be revealed in a variety of ways for different reasons – malicious conduct, social media slip-ups, carelessness and even coercion can cause an employee to share too much information. For example, a disgruntled employee may be unhappy with the way their employer treated them or they may wish to get some sort of revenge on a co-worker who was bullying them.
Something like Irn Bru’s recipe is considered to be a trade secret and can be protected in the UK either through a common law action for breach of confidence, or a breach of contract action if an employee was to share it. Trade secrets are protected without any procedural formalities. However, to qualify for protection in the UK through common law, certain elements need to be present to constitute a breach of confidence, including:
- unauthorised use of the information
- obligation of confidence.
If there has been an incident or termination of employment and the employer suspects that an employee is about to disclose confidential information, then the employer can seek a court order (injunction) that would prevent the employee from disclosing or using that information.
Alternatively, if the information has already been disclosed, the employer can seek an order for prohibition on further use and damages if loss has occurred.
While introducing workplace policies and clauses may help to deter employees from divulging company information, it is also wise to focus on company culture and make everyone aware that it is their responsibility to protect trade secrets in order to prevent them from sharing with the public.
Employers should educate on the importance and value of company information.
Employers should also set clear boundaries at the outset of the relationship – considering express contractual clauses and preparing clear social media and other policies that address what information the business considers confidential and how that information should be treated.
Dismissing an employee charged with a crime but not tried in court
The Employment Appeal Tribunal (EAT) has held that the dismissal of an employee charged with, but not yet tried or convicted of a crime, was fair.
When an employee has been charged with a criminal offence and the offence has occurred outside the workplace, can be very difficult for an employer to manage. Where disciplinary proceedings involve criminal allegations, internal investigation is required. Dismissing an employee who is subsequently acquitted may damage that individual’s reputation making it very difficult for them to obtain similar employment in the future.
However, the difficulty for employers is that the fact that there is a criminal investigation going on may mean an employee is reluctant to (or has been advised not to) answer his employer’s questions. Criminal charges can take a considerable period of time to come to Court and an employer may not want to have an employee suspended on full pay for a prolonged period. In addition, the fairness or otherwise of an employment dismissal will not necessarily be determined by ultimate guilt or innocence.
However, when the employer’s reputation is at risk as a result of the employee being charged, the reason for the dismissal will be “some other substantial reason”, not misconduct, and different factors are considered. In Lafferty v Nuffield Health, Mr Lafferty was a hospital porter who was charged with assault to injury with intention to rape. His role involved transporting anaesthetised patients to and from operating theatres. He had twenty years’ service and an unblemished disciplinary record. Nuffield Health, as a registered not-for-profit charity, was conscious of the scrutiny charities, in particular, can come under in these circumstances.
Following an investigation, a disciplinary hearing was held because of the potential reputational damage the charge against the employee might cause to the business. The disciplinary hearing looked at the potential damage to the business reputation an did not focus on the employee’s guilt or innocence. Mitigating circumstances were taken into account, alternatives were considered (including suspension on full pay until the trial took place) and the employee was dismissed with notice because of the risk of reputational damage to the business. An appeal was unsuccessful, although it was confirmed that the position would be held open and if he was acquitted he would be reinstated (and in fact he was subsequently reinstated by the employer).
The employment tribunal found his dismissal to be fair. The EAT dismissed an appeal, finding that the decision to dismiss fell within the band of reasonable responses. There was genuine concern on the part of the employer for their reputation if they continued to employ Mr Lafferty, given the nature of the charges against him, when he had access to vulnerable patients.
The reason that this outcome occurred is that there was no effort on the part of the employer to conclude on the charges – the focus was simply on the reputational damage. This was the reason for dismissal from the outset. Demonstrating the effect on the business and the work done to consider alternatives made it much easier to demonstrate the fairness of the procedure at Tribunal. This case was always about the business trying its best to balance the risk of damage with fairness to their employee.
Updated RIDDOR guidance
The Health and Safety Executive has issued guidance on (The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013) RIDDOR reporting of COVID-19 for employers. The guidance can be found here: https://www.hse.gov.uk/news/riddor-reporting-coronavirus.htm
Essentially, there is a requirement to make a report under RIDDOR when:
- an unintended incident at work has led to someone’s possible or actual exposure to coronavirus. This must be reported as a dangerous occurrence.
- a worker has been diagnosed as having COVID 19 and there is reasonable evidence that it was caused by exposure at work. This must be reported as a case of disease.
- a worker dies as a result of occupational exposure to coronavirus.
Relying on historic information in recruitment, was victimisation
A homelessness charity has had an Employment Tribunal claim brought against them for victimising a former staff member after refusing to give her work because of an abandoned bullying investigation and an equal pay claim, which dated back 15 years.
The Tribunal found that the claimant, who worked as a freelance welfare rights coordinator, was victimised after she was refused work as a locum because of allegations made against her and then dropped in 2004.
In 2004, the claimant resigned due to having to relocate and during her notice period, was called to a meeting to respond to bullying allegations that had been made against her by her manager. She was told there had already been a preliminary investigation of the allegations, but the decision had been not to proceed with the formal investigation.
The Claimant stated that she was surprised that the allegations were “simultaneously raised and closed, without having had the opportunity to answer the allegations”. During the employment tribunal, she explained that she was concerned that the allegations were “left in the air without being solved” and that this might cause difficulties for her as she intended to continue working in the same sector. However, the tribunal heard no subsequent action was taken against her.
Shortly after leaving her position in 2004, the Claimant discovered that a male colleague had been paid more than she had for work that she considered to be of equal value. She lodged tribunal proceedings at that time, but ultimately elected not to continue with the claim.
In 2017, the Claimant returned to work with the charity as a freelance consultant. She successfully applied to be part of the charity’s bank of locum workers in 2018 and was also told she could be considered for management roles in the future. The request was put to the executive director of HR and governance (who had worked for the charity in 2004), who told the tribunal that she immediately recalled the bullying allegations against the Claimant because “they had been so extreme”.
The tribunal concluded that it was likely that the HR director had a discussion about the Claimant’s employment with the chief executive and that following this discussion, the Claimant received an email on withdrawing the offer of locum work with the reason that “information has subsequently come to light surrounding your previous employment”. Having sought clarification the Claimant then received the following explanation: “We do not offer employment or work via our locum bank to any ex-employee of the organisation or any predecessor organisation either where they were previously subject to a disciplinary action or they resigned from/left the organisation at a time when a disciplinary investigation was underway.”
On receipt of this email, the Claimant brought claims of victimisation to the tribunal, which ruled in her favour. In his judgment, the Judge rejected the charity’s explanation that the decision was taken because of the “vivid recollection of serious and credible, historic bullying allegations against the claimant” and concluded that it was likely the decision was made by both the HR director and the CEO and that it was “equally likely” that the Claimant’s earlier equal pay proceedings “formed at least part of the reason for revoking the offer”. The tribunal orderedthe charity to pay £17,527, including £12,000 for injury to feelings and £4,007 for loss of earnings, plus interest on both amounts.
Trying to rely on previous accusations of gross misconduct in employment decisions, without first conducting a fair disciplinary procedure was not regarded as a reasonable explanation by a tribunal. Had the employer conducted a correct procedure at the time, they may have been able to rely on its outcome in justifying their decision.
How is remote working operating in your business?
Instant messaging, video chats and conference calls have come to the fore for those businesses which have been able to operate remote working successfully. This is uncharted territory however, and a new system of etiquette has arisen with the new culture of remote working. Here are some helpful “do’s” and “don’ts”:
Make sure people know what they are doing
Guidance should be given to line managers to support them in supporting their teams. If necessary, put out of office messages on email to advise senders that staff are operating unusual working hours to due home schooling and that emails may be responded to in “odd” hours. Make sure that staff know it’s ok not to be in front of their PC all day but also make sure that they understand how much is expected of them and that they deliver what is expected.
Keep up with normal office routine if possible
If you have a team catch up every day, maintain that habit. If you do informal coffees on a particular day, or pizza for lunch on a particular day, try to maintain the time and routine of these aspects of working – bearing in mind that these elements are often the highlight of employees’ week!
Ask your staff what will work best
Make sure that staff understand how to use things like Skype and Zoom and don’t assume that they will find it easy. Issue clear instructions and make sure that people have time to prepare to dial into calls and video conferencing. If you ask staff to access an intranet system make sure that their technology and wifi will support this and that multiple access works.
Only communicate by text or email
Messages can be lost in translation if they are only written – try to have regular phone calls or video calls with your team. Things in type can appear to take on a “tone” so ensure that all emails are written clearly and have no ambiguous messages underlying them. Pick up the phone if you think a team member has misunderstood something.
Assume that people are not working
Trust is key to successful remote working. Do not micro manage teams – and remember that if people did not have a productivity issue when they worked in the office, they are unlikely to have a productivity at home.
Ultimately the most successful relationships will be those where all parties are clear about expected outcomes and have support to deliver them.
“Toxic” workplace cultures may cost billions
According to new research the price of perpetuating a toxic work culture could total a staggering £15.7 billion per year. The report revealed that one in five SME employees left their job due to poor workplace culture.
The report also found that one-third of SME ‘decision-makers’ experienced or witnessed workplace bullying in the past year. In addition, 31% of business leader respondents experienced or handled harassment cases in the last year. What is interesting is that 57% of those respondents reported that senior management handled the situation badly.
Around one in ten employees cited a lack trust in company leaders, and of these, 56% reported that they don’t feel adequately supported by management. Only 15% of UK workers have ‘a lot’ of trust in their company leaders and of those who did not have trust in their management, over half said that they did not appear to know what they are doing followed by 56% who said that they did not feel supported by them.
Working from home – be aware of increased risk of online attacks
Cybercrime has increased due to the coronavirus outbreak as hackers take advantage of people spending more time online during this period of lockdown. It is therefore crucial for remote workers and business leaders to be aware of the increased risk for homeworkers.
Last month, hackers tried to break into the World Health Organisation (WHO) amid what a senior agency official described as a more than two-fold increase in cyberattacks. While the hackers’ efforts were unsuccessful, the WHO’s Chief Information Security Officer warned that hacking activity against the agency and its partners had spiked amid the COVID-19 pandemic.
Hackers are taking advantage of public fears surrounding coronavirus and exploit employees who are currently working from home throughout the pandemic.
- Hackers may exploit fear and vulnerability of home workers by providing links to content pretending to provide false information on behalf of authoritative bodies and regarding things such as quarantine and school closures – all topics that people will want to keep updated with. If people are anxious and concerned, then they are more likely to become an easier target. Additionally, if scam memos are packaged to look like the real deal with headlines such as “the latest breaking news” then people will be more likely to click.
- They may also try to exploit isolating or social distancing workers. If people are cooped up indoors by themselves all day and every day, and have less contact with work, friends and family, they may make poor decisions when it comes to ‘cyber hygiene’. This could mean that they click or download information that could put them at risk. Hackers can make these links look legitimate so it can sometimes be more difficult for people to spot.
- With so many people working remotely and using personal tech to facilitate working from home, it is crucial employees don’t download sensitive corporate information onto the personal devices but to use work tech that will allow them to work safely.
Therefore, it is advised that managers issue guidelines to employees accessing work intranet systems from home, to be extra vigilant to hacker approaches.
Are managers asking too much of their teams?
Persuasive managers may from time to time ask their team members to do more than is “expected” of their standard job description such as doing additional work in the evenings or at the weekend or doing more when a colleague is on holiday. Being asked to take on additional responsibilities may be part of the norm for many employees, managers should also be aware of some things they should never ask of their employees. Here are some guidelines:
Don’t ask anyone to do anything you would not do
If you are unwilling to work after hours or at the weekend then you must not ever ask this of one of your team. Even if you have a “willing” employee, take note that they may be pushing themselves forward to make an impression on you. It is just wrong to ask something of an employee that you are not willing to do yourself!
Do not ask a team member to cancel a holiday
There are times when businesses may need all hands on deck. And in the current pandemic, many holiday plans will have gone awry. However, holidays generally have an emotional attachment and be aware of the morale effect of asking someone to cancel a holiday with their family.
Be aware of bullying behaviour
An employee that chooses to bully their colleagues should not be knowingly tolerated. It is vital that managers ensure the wellbeing and welfare of staff. No team member should be subject to a toxic work environment.
Do not ask people to work when they are unwell
Asking staff to come into work (or work from home) while sick will cause issues for the team. Build a culture of understanding and open communication where staff do not feel guilty for needing a day at home to get over illness.
Take responsibility for your own actions as a manager
When a delegated task fails, consider how to deal with it. Should you, as the manager, accept some responsibility for the task failing, or do you blame your employee for the failure? If something doesn’t go to plan that was your idea, it is ok to admit that you were wrong.
Avoiding bullying in the workplace
Although bullying is not in itself a legal claim, an allegation of work-place bullying can lead to several legal issues being raised, including discrimination, harassment and/or constructive dismissal. The implications of this can be significant. Employers can face unlimited awards as compensation if a bullying claim is classed as discrimination.
Sometimes an employer can inadvertently foster a bullying culture by simply not addressing warning signs. Employee engagement, staff morale and business productivity are also likely to suffer in a disgruntled workforce.
Here are some guidelines to help create an engaging culture at work:
Employers must provide training and support to their managers, so they can recognise bullying issues and support the affected employee from the outset. It is important that managers feel equipped to be confident in tackling bullying issues.
Make sure there is a policy in place
Employers need to provide clear guidance on what constitutes bullying, as some behaviours might not be recognised as bullying by certain employees. Setting clear behavioural boundaries for staff also makes it easier to take action against those who choose to ignore them, which in turn helps to reduce legal risk. The policy should also contain a clear process for raising and addressing bullying stating how any allegation will be dealt with (ie as a formal grievance) and setting out a process of investigation and responsibility for the process.
Ensure that the environment is “safe”
Businesses must do what they can to ensure that employees feel able to speak out if they feel they are being bullied. Reassure employees that if they raise allegations of bullying then they will be treated. If an employee feels able to raise something informally, there may be no need to begin a formal investigation and the matter can be resolved swiftly.