Well, if you’re an employer that doesn’t want to face having to respond to a claim for constructive dismissal then it might be!
If the case of Rathod v Pendragon Sabre Ltd is anything to go by, employers need to ensure that they take adequate steps to stamp out this kind of behaviour or they could face serious consequences; both financially and reputationally.
The Claimant, a male who described himself as British Asian, was the only non-white member of a sales team, where a culture of ‘laddish’ and crude behaviour was apparent. Whilst the ‘banter’ began in a relatively jokey way, it quickly became more serious in nature and involved the Claimant being called a “Chapati” and “Poppadom”. There were of course other phrases that were thrown about by the employees, which were completely inappropriate and unacceptable.
Understandably, the Claimant didn’t take too kindly to these insults, however due to the culture of the workplace, felt that he had to conform and join in with the apparent ‘banter’. Ultimately, the Claimant didn’t want to be the only one left out so joined in as best he could.
A WhatsApp group that was created during lockdown allowed the behaviour to continue, but upon returning to work, the Claimant raised his upset and concern with his manager. The Claimant then decided to raise a grievance, which was dismissed.
Following a period of sick leave, caused by the working environment, the Claimant lodged another grievance, but this time specifically mentioned various colleagues who had taken the ‘banter’ too far. One of those colleagues clearly wasn’t happy, and in return shared images which showed the Claimant joining in with the conversations and jokes that he was indeed complaining of.
The Respondent terminated the Claimant’s employment, based on the fact that the Claimant had sent racist and sexist material to a white colleague on WhatsApp, to which he appealed.
The case made it to the Tribunal, where it was held that the Claimant’s claim for unfair dismissal and breach of contract would be successful. The Judge stated that there was a far wider issue within the Company which should have been dealt with after the Claimant lodged his first grievance. He further stated that the wider office culture was investigated or taken into account in relation to the inappropriate messages the Claimant had sent to colleagues.
What should the employer have done?
For a while there has been a shift in the culture of many businesses, who are now trying to stamp out ‘banter’ with a zero-tolerance approach. Had the Respondent have implemented such a policy, or at least taken action after the Claimant lodged his first grievance, the outcome could have been different.
Clearly things that some perceive to be a joke, will not be thought of in the same way by others and it is important that employers have clear bullying and harassment policies which are fully implemented. Previous cases have shown that it is not enough to just have policies; employers need to take a proactive approach in training and eradicating this kind of behaviour or they could face a claim against them.
If you would like us to review any bullying and harassment policies or have any queries in relation to the culture in your workplace, then please get in touch with a member of the team on 01752 663295.