A word of warning when making what you think is a throwaway comment

Dispatch manager Kevin was relieved when he was cleared of any wrongdoing for comparing a colleague to a girl.

He was facing dismissal after he confronted a workmate over an incorrect order, which his colleague denied responsibility for.

Kevin who had worked for the company for 12 years feared the worst when he was invited to attend a disciplinary hearing following the incident.

He had an active final warning on his record after being implicated in a health and safety incident, which led to a fellow worker suffering a minor injury. Another colleague culpable in the same incident was dismissed.

Kevin was notified to attend a disciplinary hearing after an anonymous colleague complained Kevin made a sexist and inappropriate comment.

It came after Kevin investigated a customer complaint about an incorrect order. He spoke to the employee he thought was responsible, the individual did not accept responsibility and complained about a host of things.

The conversation was witnessed, became heated, the colleague swore at Kevin and Kevin told him to stop crying like a girl. The complaint claimed the comment was sexist because it suggested that only girls cry.

Kevin’s manager said the matter was being taken seriously. He said a decision had been taken not to suspend from work and instead move Kevin to a different department until after the hearing.

Kevin admitted making the comment, said it was in response to being sworn at, a throwaway remark as employees say much worse to each other and he denied he was sexist.

Kevin was invited to an investigation meeting as part of the disciplinary investigation process. Following the meeting Kevin was later notified to attend a formal disciplinary hearing.

He was given a copy of the respect at work policy, the anonymous complaint and statements from two other employees who heard what was said, including the fact that the other worker swore at Kevin before he made the comment.

Kevin contacted the Castle Associates Employee Support Centre for help. Prior to the hearing our representative contacted the employer to object to the use of an anonymous statement.

He asserted that withholding the name cannot be justified, undermined Kevin’s right to properly challenge the evidence, question the motive of the witness and it breached employment law guidelines.

Following an exchange of email correspondence, the company provided the name of the witness and a signed statement. The witness turned out to be the partner of Kevin’s former colleague who was dismissed following the health a safety matter that led to Kevin receiving a final warning.

After speaking to Kevin our representative also wrote to the company to request that the two witnesses who provided statements attend the disciplinary hearing to give evidence in accordance with section 12 of the ACAS Code of Practice.

At the disciplinary hearing both witnesses confirmed they did not consider the comment made by Kevin to be offensive, as much worse was said between colleagues.  

Our representative maintained the allegation was groundless as it was unsupported and the person it was directed at had not complained or made any comment about it. He told the hearing the allegation can be considered malicious, as there was good reason for the witness to want to see Kevin get in trouble.

He argued that the comment if considered inappropriate was in keeping with those made in the workplace and therefore part of the workplace culture. Our representative said that in the circumstances nothing more than a verbal reprimand and advice about future conduct would be appropriate.

He also pointed out that in accordance with the respect at work policy provided Kevin had a legitimate complaint, backed with evidence, against his colleague for swearing at him.  However, he wanted to resolve the issue and would not pursue that and would work with the company to address any matters of concern highlighted in the case.

The disciplinary chair later cleared Kevin of any wrongdoing and issued him with words of advice about his future conduct.

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For free employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call. 0333 772 0611