Turning a Blind Eye

Everyone does something stupid sometimes, often unintentionally.  However, when this happens in a work context, the outcome can be quite serious in all sorts of ways.  Let’s look at an example.

Alan and Colin work in a warehouse, it’s a busy place with lots of different goods being received and then shipped out to the Company’s customers.

Alan and Colin enjoy larking about and are both well liked by their colleagues.  There is a lot of banter and, inevitably, some of it is unacceptable.

Alan and Colin have come to the conclusion, rightly or wrongly, that Nick, one of their colleagues, is gay. Alan and Colin make frequent comments and jokes about this which they, and their co-workers, see as funny but which gradually wind Nick up.

Nick is a relatively quiet lad and is not the sort to complain to management.  His response to the banter directed at him is to throw back the odd insult but after a while Nick realises that he is a bit of a laughing stock and he clams up.

Simon is the Warehouse Supervisor.  He is aware of the banter that is going on but sees it as part of everyday life.  He does not join in but does nothing to stop it.

One Monday morning, Alan calls to Nick across the loading bay and makes yet another comment that Nick finds insulting.  Nick is unloading boxes of washers from a container at the time, he has a box in his hand and instinctively lashes out and throws it at Alan.  The box hits Alan on the head cutting him. Suddenly there is blood everywhere and Alan is semi-unconscious.  Simon, who is also a trained first-aider, attends to Alan who is subsequently taken to hospital by ambulance.

What are the legal issues for poor Sarah, the HR Manager to consider when sorting out this mess?

Firstly, Alan and Colin have engaged in unlawful harassment of Nick.  This is the case irrespective of whether Nick is actually gay.

Secondly, the Company, through Simon’s failure to prevent what he knew was going on, failed to stop Alan and Colin’s behaviour and so is liable for the harassment.

Finally, Nick has assaulted Alan in the workplace.

So, does the Company sack Alan and Colin for engaging in homophobic behaviour;  Simon for turning a blind eye and Nick for assaulting a fellow worker?  Alternatively, does it take no action on the grounds that everyone has learnt a lesson?  Colin and particularly, Alan are unlikely to tease Nick any more;   Simon will be trained in how to deal with harassment;  Nick was clearly provoked.

Unfortunately for Sarah, there is no right answer, but there is a clear procedure for her to follow.

Firstly, the incident and connected events have to be investigated carefully by an independent manager.

When that has been completed, all of them should be called to a disciplinary hearing – that is Alan and Colin, Simon and Nick.  They will be sent all the evidence in advance of each of their hearings.  They will each have the right to be accompanied at the hearing by a work colleague or trade union representative.

Regardless of whether Alan and Colin were just having a laugh, harassing fellow employees is totally unacceptable.  Depending on the type of language used by them, the intensity of the harassment and the length of time it went on for, they should face either a final warning or dismissal.

Simon has exposed the Company to the very real risk of a number of legal claims by not dealing with the harassment when he was aware of it.  The Company could be liable to Nick for the harassment dished out by Alan and Colin and could be liable to Alan for the injury caused by Nick.  The penalty Simon faces probably depends on how well, if at all, he has been trained in how to spot and deal with harassment.  No training means a warning would be justified;  a lot of training, possibly dismissal.

What about Nick?  This is probably the most difficult decision.  On the one hand, he was harassed at work and not protected at all by his employer, until he was eventually provoked into taking action.  On the other hand, assaulting a co-worker will normally be a pretty straightforward example of gross misconduct and Nick did have other options – such as raising a grievance – rather than lashing out at Alan.  The absolute minimum sanction will be a final warning but dismissal is quite likely.

The lesson for employees;  larking about and practical jokes can have unforeseen consequences.  Try and think before you do something really stupid and never pick on weak or vulnerable employees.

The lesson for employers;  the cost of ensuring your manager and staff are properly trained will be a lot less in the long run than the costs (direct and indirect) of sorting out a messy incident.

Published 27/09/2006.