Good intentions with bad consequences.
Published 05 April 2023
Sasha was left in disbelief when she was fired for paying a male colleague what she considered a genuine compliment.
He later complained it amounted to sexual harassment, made him uncomfortable at the time and that afterwards it negatively impacted on his performance at work.
Sasha’s colleague first raised his complaint when he was being put through a performance management process, and he was apparently facing the threat of dismissal.
In trying to justify his poor performance, the employee referred to the comment made by Sasha, and claimed the harmful impact of it was the reason for his poor performance.
Sasha felt she was being unfairly used as an excuse in a last-ditch and desperate attempt by her colleague to keep his job.
The allegation stemmed from a conversation in which railway worker Sasha essentially told her colleague he looked great in his uniform.
It was in response to him moaning to her and others that his uniform was too tight, unflattering and that he looked overweight and unattractive.
Sasha admitted making the comment when she attended a fact-finding meeting during the disciplinary investigation process.
She explained it was a genuine attempt to make her workmate feel better because of how upset he was about his appearance.
Two other colleagues present, and interviewed as witnesses, confirmed they heard Sasha make the comment.
When Sasha attend a disciplinary hearing it was made clear the employer took the complaint very seriously and had a zero-tolerance approach to all forms of harassment.
Sasha, who had worked for her employer for 12 years, insisted it was an innocent comment. However, she was dismissed for sex-related harassment.
When our representative first met with Sasha he was keen to understand what her desired appeal outcome was.
Sasha was clear in that she wanted to be reinstated because she loved her job and wanted to get back to work.
The evidence to support the allegation was made up of a statement from the colleague who had made the complaint, two witness statements and the equality, diversity and inclusion policy.
The complaint would prove to be key at the disciplinary appeal hearing.
While the employee clearly tried to pin all of the blame for his poor performance on Sasha, it was what he said he wanted to happen that would prove crucial.
Key bits of a comprehensive appeal case presented by our representative on behalf of Sasha included, pointing out to the appeal hearing chair the complainant had said he simply wanted Sasha to be aware of what she said to others, an apology and he did not want her to get into trouble.
This was used by our representative to assert the complaint was essentially a grievance and the decision to dismiss unfair and an overreaction.
He added that based on the evidence it could, and should, have been dealt with as a grievance in line with company procedure and resolved informally.
Our representative asserted that failing to follow such a process, or even attempting to do so, helps to support the decision to dismiss was unfair and unduly harsh.
It was also pointed out the ACAS Code advises employers to use the discipline process to encourage employees rather than sanction them, which would have been an appropriate approach to take based on the evidence.
He explained Sasha’s intention was honourable in trying to boost the confidence of an upset colleague, she deeply regretted causing any distress and had taken significant and appropriate learning from what occurred. Our representative said it should provide an assurance she would not be involved in anything similar in future.
Sasha’s long-service, exemplary disciplinary record and fact upsetting colleagues was completely out of character were explained in mitigation.
The appeal proved successful and Sasha was reinstated.