Employment Halloween Horrors

In this month’s Employment Update we’ve decided to take a seasonal approach and look at the unexpected frights for an Employer arising from Halloween. From issues concerning religious beliefs to fancy dress in and outside of the workplace you might be surprised to learn that often Halloween provides more employment tricks than treats.

Here are just a few issues that Employers should be aware of;

Ensure that fancy dress within the workplace does not cause offence.

An English Employment Tribunal case of X v Y ET/1605521/09 concerned a gay male employee who worked in a call centre which regularly held fancy dress days to raise money for charity. Unfortunately issues arose for the Claimant as some of the male staff often dressed as female celebrities. This behaviour led to ‘banter’ directed at the Claimant, often sexual in nature with the men using effeminate voices and limp wrist gestures. According to the tribunal, there was "no opportunity to escape" if scheduled to work such a day. The Claimant found his colleagues behaviour highly offensive.

The Claimant alleged the above together with other acts of discrimination forced him to resign citing an intolerable working environment. He subsequently brought claims of direct discrimination and harassment under the Employment Equality (Sexual Orientation) Regulations 2003.

Upholding the Claimant’s case in part, the Tribunal found that although it was not the purpose of the fancy dress days to violate the Claimant’s dignity, it did have that affect and the employer had approved an event that led to conduct that could reasonably be said to have created an intimidating, hostile, degrading or offensive environment for the Claimant.

Remember Halloween or All Hallows’ Eve is traditionally a religious holiday.

A 2013 Employment Appeal Tribunal case of Holland v Angel Supermarket Ltd ET/3301005/2013 highlighted that an employer should not forget that despite its evolution, All Hallows’ Eve is an important event in many religious calendars. This case concerned Ms Holland, a wiccan, who worked at a convenience store owned by Mr Singh. On 31 October, Ms Holland agreed with another employee to work a later shift to allow her to celebrate All Hallows' Eve. When Ms Holland explained to Mr Singh the next day why she was working a later shift his reaction was negative and he expressed some surprise that she was not a Christian. Ms Holland was subsequently dismissed on 6th November due to alleged overstaffing.

Ms Holland brought a claim for unfair dismissal and discrimination on the grounds of her pagan religious beliefs. Following the dismissal and also before the tribunal, Mr Singh alleged that Ms Holland had committed theft, and that was the reason for her dismissal, but the tribunal found this to be untrue. It held that the dismissal was direct discrimination on the grounds of her religious belief and awarded Ms Holland £9,000 for injury to feelings.

Be aware of Halloween related misconduct

In the Employment Appeal Tribunal case of Biggin Hill Airport Ltd v Derwich UKEAT/0043/15/DM the Claimant was dismissed when it was found that she had placed an image of a witch as a screensaver on a colleague’s computer. The Claimant had apparently taken offence at her colleague’s decision to ‘unfriend’ her on Facebook following an appointment to a supervisor role.

The Claimant’s case for unfair dismissal was initially successful in the Employment Tribunal due to procedural deficiencies however this decision was overturned by the Employment Appeal Tribunal. This Claimant’s case was remitted for consideration by a fresh Tribunal to reconsider the ‘questions of fairness, contribution, Polkey and remedy’.

Staff Pulling a ‘Sickie’

With Halloween parties and festivities becoming increasingly popular employers can find themselves questioning how genuine sickness absence is at this time of year.

In the Employment Appeal Tribunal case of Ajaj v Metroline West Ltd UKEAT/0185/15/RN the Claimant was dismissed for gross misconduct on the grounds that he had made a false claim for sick pay, misrepresented his ability to attend work and that he had made a false claim of injury at work following a slip in the workplace.

In overturning the Employment Tribunal’s decision that the Claimant has been unfairly dismissed the EAT confirmed that ‘an employee “pulls a sickie” is representing that he is unable to attend work by reason of sickness. If that person is not sick, that seems to me to amount to dishonesty and a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship.’

This case is a helpful reminder that exaggerating or misleading an employer regarding sickness absence is a misconduct, rather than a capability issue. 

Social Media Issues

Outside the workplace employee behaviour can often create issues where it brings employers into disrepute or calls into question an employee’s continued suitability for a role. This issue is extremely prevalent around Halloween where employee’s behaviour can come into the public domain through various forms of social media.

A recent news story concerning students on a pub crawl dressed as Alton Towers crash victims as well as various high profile examples of individuals in ‘black face’ over recent years are marked examples of how employee behaviour outside the workplace can cause reputational damage and cause offence to colleagues within the workplace. Such issues however are not limited to fancy dress and include inappropriate online comments and online videos of inappropriate behaviour.

It is crucial for Employers seeking to take disciplinary action for misconduct arising through social media that they have a Social Media Policy in place and that it was clearly communicated to its employees prior to the conduct in question.

If you or your business require advice in relation misconduct or discrimination in the workplace please contact Millar McCall Wylie on 02890 200050 and ask to speak with a member of our Employment Department.

 

 

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