Anti Social MediaSep 14, 2021
A recent first instance Tribunal case has emphasized the importance of consistency of treatment amongst staff, as well as suggesting that a social media policy can be important when seeking to regulate non work-related messages.
By way of background, the Claimant in the case of Rathod v Pendragon Sabre Limited, Mr Rathod, worked as a salesman in Pendragon’s Porsche dealership. The atmosphere within the dealership was, to say the least “laddish”, involving numerous crude and immature jokes between the sales people: there were conversations which were sexualized, and activities took place such as food fights and wrestling. The Tribunal found that there were deliberate
and aggressive expressions of misogyny and hostility towards homosexuality and racism in the workplace.
The Employment Tribunal Judge found that Managers participated in some aspects of the culture in which Mr Rathod, a British Asian, found himself when he joined the Respondent in 2018. In his attempts to fit in, the Employment Tribunal found that Mr Rathod had begun to mirror the behaviour of his colleagues and, in some circumstances, made the inappropriate jokes first in order to get to the joke before his colleagues did.
Mr Rathod was repeatedly referred to as “Chapati and Poppadom” and on one occasion a sales team member threw a banana on the floor in the presence of Mr Rathod’s son, saying “I want to see how he reacts”.
Following lockdown, Mr Rathod set up a new WhatsApp group entitled “Porsche Sutton Coldfield” and introduced it with the post “Just thought I’d set up this group whilst COVID 19 is around”. Whilst the group included colleagues, including two sales managers, it did not include the wider workforce, especially the female members of staff.
After three months of furlough, Mr Rathod returned to work and raised with his manager that he was uncomfortable with some of the banter in the workplace: he was advised to speak to the team and tell them how he felt.
In September 2020, whilst absent due to stress, anxiety and depression, Mr Rathod raised a grievance that various colleagues had racially harassed him at work, including a specific allegation against a colleague, referred only in the judgment as “O” or “Oliver”.
Following the grievance investigation, which upheld a number of Mr Rathod’s complaints and found evidence of
widespread inappropriate behaviour, disciplinary action was started against Oliver in respect of racial harassment towards Mr Rathod. Oliver swiftly resigned; however, Oliver defended his actions in the workplace on the basis that he and Mr Rathod were friends and Mr Rathod behaved in the same way. Oliver provided a number of WhatsApp messages between he and Mr Rathod which, at best, could be considered deeply inappropriate: crude sexual references, suggestions of fellatio, a reference to taking drugs using the bodies of government ministers as a table, and a racist meme.
Crucially, however, Oliver did not suggest that these messages were offensive to him: he had referred to them in the context of the type of relationship he had with Mr Rathod.
Having reviewed the messages and investigated with Mr Rathod, a disciplinary meeting was convened with Mr Rathod on the grounds of racial harassment and sexual harassment towards Oliver. Following which the employer found it had “no alternative” but to summarily dismiss Mr Rathod. As everyone knows, there is always an alternative to dismissal.
The gravity of the communications were such that, within the workplace, any employer would likely have considered dismissal, so why did the Employment Tribunal find the dismissal was unfair?
Firstly, given that Oliver had not at any stage said that he found the messages offensive, and did not give evidence at the hearing, how could the employer determine that Mr Rathod’s behaviour amounted to harassment? How could they know that the messages violated Oliver’s dignity or created an intimidating environment? Oliver had not said this, nor had he suggested this; in fact, he had provided the messages to show the good relationship that he and Mr Rathod had.
Secondly, the employer had relied upon its dignity at work policy; however, this required some action by an employee, for example a complaint, to activate; Oliver had not complained about Mr Rathod’s behaviour, so how could the Tribunal determine that Oliver’s dignity had been impacted?
Thirdly, the messages were not public messages: they were private messages between active participants in a private group. Had the employer wished to regulate this behaviour outside of its normal equality policies, it should have put in place an acceptable use policy for social media.
Finally, and to our minds, most importantly, the employer claimed a “zero tolerance” approach to the behaviour exhibited in the messages sent by Mr Rathod; however, having found that this behaviour was endemic in the workplace, it had not dismissed anyone else. How could Mr Rathod’s behaviour be so unacceptable as to amount to gross misconduct, when no action was required against others who had engaged in similar behaviour?
So what does this case tell us? Firstly, always remember that you have a choice when determining a disciplinary sanction: to suggest that there is no alternative smacks of pre-determination of the outcome; secondly, make sure that the wording of the allegations is legally correct: if you are referring to harassment, does it meet the definition of harassment, or is it simply unacceptable behaviour; thirdly, if an employer is seeking to moderate behaviour which is not directly linked to the workplace, ensure that there is a policy in place setting out what the unacceptable behaviours are; finally, and most importantly, remember that consistency in disciplinary decisions is key: if you treat individuals differently for the same misconduct, you better have a very good reason as, otherwise, you are likely to be on the wrong end of an unfair dismissal finding.