The trouble with saying something to be helpful – but it is considered not to be

Employees could be forgiven for believing the line between making a comment with good intentions and harassment is confusing, as Susan discovered.

The restaurant team leader was accused of sexual harassment after telling a male employee that he looked great in his uniform.

It was just after Christmas, and the member of staff complained in a team meeting about putting on weight over the festive period.

He moaned that he looked overweight and terrible in his uniform which was too tight.

Susan assured him that he had nothing to worry about because he looked great.

The bad news for Susan was, as a result of a well-intended compliment designed to boost a colleague’s confidence, she faced a fight to save her job after seven years in the role.

Susan faced an allegation of making an inappropriate comment that could potentially amount to sexual harassment.

There was, however, eventually some good news for Susan. After contacting our Employee Support Centre and with help from our representative, she was later cleared of the allegation.

Susan was known for her friendly demeanour and positive attitude towards her colleagues. Susan was devastated by the allegation levelled against her.

She was initially suspended from work to allow a disciplinary investigation to take place. The decision to suspend was later reviewed, and Susan was moved to another local outlet until the investigation was completed.

The investigation took witness statements from four employees present when Susan made the comment.

There was also a witness statement provided by the employee the comment was aimed at. Interestingly, he did not complain about Susan.

He made it clear he did not have a problem with what Susan said, but did feel slightly uncomfortable when she made the comment.

It would later emerge that an area manager was somehow informed about what Susan had said. He believed it was harassment and that it breached the dignity at work policy.

He was said to have claimed that if a man said it to a woman it would be unacceptable and seen as sexual harassment, so this should be no different.

Our representative felt the direct witness evidence, based on their witness statements, would be key in the case.

As a result he made a request for the witnesses to attend the disciplinary hearing when it took place.

The company disciplinary policy reflected section 12 of the ACAS Code of Practice, in that it allowed and employee to request that witnesses attend a disciplinary hearing.

Quizzed by our representative the witnesses, using various different words, confirmed they had been trained on diversity and inclusion, did not believe what was said was offensive and they had said similar to the same employee at the time.

The employee the comment was directed at did say he felt slightly awkward at first because Susan was his manager, his colleagues had said similar and it was fine, and he definitely did not feel objectified or harassed in any way.

Our representative told the hearing what Susan said was intended as a harmless compliment and not said with any ulterior motive or to cause discomfort.

It was explained that she regularly praised and complimented colleagues, which all of the witnesses confirmed was always welcome.

Our representative explained Susan’s genuine remorse for any unintended discomfort her comment may have caused her colleague.

It was emphasized at the hearing that her positive intent was to boost the worker’s confidence given his negative comment about himself, and it was meant in a supportive manner.

Our representative spoke about the risk in setting a dangerous precedent in taking disciplinary action against an employee based on offence taken by someone else, the area manager, when the apparent target was completely fine with what was said and had no complaints.

After carefully considering all of the evidence and witness evidence presented during the disciplinary hearing, the disciplinary hearing chair found that Susan’s comment did not amount to sexual harassment.