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The disciplinary problems created by innocent comments taken the wrong way

Published 27 May 2020

For any manager wrongly accused of harassment it can be a nightmare experience fighting to clear their name.

 

Leisure centre boss Jonathan was devastated when he was suspended from work for making ‘inappropriate comments’ about a female colleague said to amount to sexual harassment.

 

It was after he complimented her drastic new hairstyle and her appearance in a separate holiday snap posted in a work WhatsApp group, nearly two months later.

 

Jonathan, who had been a manager for five years, admitted making the comments. He insisted they were genuine compliments with no ulterior motive.

 

He was warned that if proven the allegation could lead to dismissal. Jonathan contacted the Castle Associates Employee Support Centre for help.

 

He informed our representative that his colleague making the complaint was on the verge of being dismissed at the end of her extended probation period.

 

He believed the allegation was a desperate act on her part to make something out of nothing and ‘throw him under the bus’ to avoid being dismissed, which he felt was inevitable.

 

Jonathan was convinced it was because she had under two years’ service and could not make an unfair dismissal claim if dismissed, which he said was inevitable.

 

An employee’s length of service is irrelevant if a dismissal is discriminatory.

 

At the disciplinary hearing our representative asserted that based on the evidence the allegation was malicious and groundless.

 

Social media pictures of the colleague’s appearance before and after her change of hairstyle were presented. Previously she had long hair before getting a crew cut and dying it a bright colour.

 

Jonathan expressed his surprise at the dramatic change of image and told her she looked ‘fantastic’.  He made no other comment and felt the two had a good working relationship afterwards.

 

To support this, messages between the pair about workout supplements, routines and compliments paid to each other were presented to the hearing.

 

Jonathan’s second comment, over eight weeks later, was in response to a holiday snap his colleague posted of herself in a crop top. Jonathan said that he can see her work in the gym is paying off.

 

The evidence to support the allegation against Jonathan was a copy of the picture and a screenshot of just his message from the group chat.

 

Our representative provided more of the message thread. It showed Jonathan was the sixth person to comment on the picture - and third male to do so.  

 

One of the male comments was sexually suggestive and a comment by a female colleague was crude.

 

Our representative told the hearing Jonathan’s innocent comment was in keeping with the evidence provided of the friendly relationship he had with his colleague.

 

It was pointed out that it was tame in comparison to other messages in the thread from individuals not facing disciplinary action.

 

The hearing was told that there was no evidence of Jonathan following up his message or earlier compliment, pestering his colleague or acting in any way to cause her alarm or distress that could reasonably be considered to amount to sexual harassment.

 

It was said the allegation was malicious, Jonathan was in a senior position and had extended his colleague’s probation period, he was likely to be the one to dismiss her and she was using him as a fall guy and excuse.

 

Our representative also highlighted that given the nature of the complaint it should have been dealt with as a grievance in accordance with the leisure centre’s policy.

 

He said had it done so it would have established that the allegation was groundless. The fact management did not follow procedure left Jonathan feeling victimised.

 

Jonathan was asked questions about his relationship with his colleague and challenged about if it was appropriate for a manager to make the comments he did. He was honest and open about his actions and reasoning.

 

The disciplinary hearing was adjourned and after a lengthy break Jonathan was eventually cleared of the allegation.

 

“A reputation built on success”

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

A reputation built on success

For 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. 

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