Blackadders LLP
Search
Close this search box.

Latest news

Jeepers Creepers! Dismissal not within the range of reasonable responses for prankster employee

March 1, 2024

Often determining the best course of action when dealing with misconduct in the workplace can be tricky. Managing workplace banter and pranks can make a difficult area even harder to navigate for employers. The recent case of Richardson v West Midlands Trains Ltd highlights this and provides a little bit more guidance on when dismissal for misconduct can be considered ‘reasonable’.

Facts of the case

Mr Richardson was employed as a train driver by West Midlands Trains Ltd and was based in their Bletchley depot. He found out one day that one of his colleagues had an aversion to bugs, and decided to pull a prank on her. He placed a tarantula exoskeleton (the outer skin which is shed by the spider) in her pigeonhole at work. Upon finding this, Mr Richardson’s colleague was (understandably) distressed. Mr Richardson later had a conversation with this colleague during which he raised the prospect of a further prank (leaving a snakeskin in her pigeonhole) to which she replied ‘no, I would not like that.’ When he asked if she would report him for it, she responded ‘Yes’.

Around a month after the first prank, Mr Richardson placed a snakeskin in the same colleague’s pigeonhole, once again, causing her distress upon discovery. Mr Richardson’s colleague reported this incident to her manager, first verbally and then by email. This initiated a disciplinary investigation which ultimately resulted in Mr Richardson being dismissed for gross misconduct, under the employer’s Bullying and Harassment Policy.

The ET Decision

However, an employment tribunal has found that Mr Richardson was unfairly dismissed. The tribunal also upheld Mr Richrdson’s clam for wrongful dismissal. Mr Richardson was reinstated to his former role and awarded over £40k for loss of earnings.

The judge found that it was not reasonable for the employer to conclude that Mr Richardson’s conduct was sufficient to warrant dismissal. The judgement is clear that Mr Richardson’s conduct was not acceptable. However, it was not sufficiently serious to be considered gross misconduct. While the investigation was reasonable, the disciplinary and later appeal officers failed to consider some key aspects of workplace banter and the nature of pranks when coming to the decision to dismiss Mr Richardson.  

The judgement specifically mentions the fact that both Mr Richardson and his colleague had described the conversation between them after the first prank, where Mr Richardson’s colleague asked him not to put a snakeskin in her pigeonhole, as ‘banter’. The fact that this was accepted by both parties should have been considered by the employer as it raises doubts about how clear the message to stop was to Mr Richardson. The employer should have considered the general tone and the effect this would have had on Mr Richardson’s understanding of the situation. This on its own was sufficient for the judge to determine that the employer lacked reasonable grounds to conclude that Mr Richardson had committed gross misconduct but goes on to provide further reasons to support this conclusion.

The judgement goes on to consider pranks generally. The judge comments “Considered objectively, pranks are peculiar. Their purpose is to cause a degree of upset or discomfort, albeit fleeting. On that basis, many, if not all, pranks could be considered as bullying. That makes them no less commonplace. It is very clear, and the Claimant openly accepted at the hearing, that some pranks may well be considered by a reasonable employer to be so serious as to constitute gross misconduct. Plainly not all will, regardless of whether classed as bullying or not.” It is also clear that the nature and outcome of the prank will have an impact on how it should be dealt with. In this case, the pranks did not involve any risk of physical harm, were not abusive in nature and were largely harmless and childish. The distinction here being that if, for example, the tarantula’s exoskeleton was concealed in the driver’s cab of a train where it could have been discovered while the train was in motion and distracted the driver, an employer could reasonably consider this to be a more serious offence and within the remit of gross misconduct.

Finally, and critically for employers looking to apply guidance from this judgement to their own disciplinary process, the judge noted that both the disciplinary and appeal officers considered the matter to be capable of informal resolution. This was noted in meeting minutes from the disciplinary and appeal processes. The judge comes to the view that where a matter is considered capable of informal resolution it is inconsistent for that matter to be considered to be gross misconduct which is a label which should be reserved for extreme misconduct. This shift to the most extreme end of the disciplinary action scale was not, in the judge’s opinion reasonable. The judgement goes on to hypothesise that in this case mediation, or some other informal action such as a warning, would have been the logical avenue to pursue.

Guidance for employers

This judgement deals with what is a very difficult area for employers to police. Often ‘banter’ is used as a cover or to excuse inappropriate conduct in the workplace. Critically, that is not the case here. The judgement deals with banter between colleagues only in so far as it could have affected Mr Richardson’s understanding of the severity of his colleague’s reaction to the first prank as he was not there to witness it himself. However, the guidance on pranks is more helpful as it provides employers with factors to consider when determining if a prank should be considered serious enough to warrant dismissal. It is also worth remembering that in any internal misconduct process, if it is determined that an issue can be resolved informally it should be. It’ll save time and resource and if it is capable of getting the same outcome it’s well worth pursuing.

If you have any questions on this on any other area of Employment law, please get in touch with Blackadders Employment Team, working in Aberdeen, Dundee, Edinburgh, Glasgow and across Scotland.

Nicola Burns

Nicola Burns

Director of Operations

Marketing Team

+44 1382 342217

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

Copyright

Privacy statement

Make an enquiry

Blackadders LLP will use this information to deal with your enquiry. Our Privacy Policy explains how we take care of your information.

Request a call back

Blackadders LLP will use this information to deal with your enquiry. Our Privacy Policy explains how we take care of your information.

Website search

Register for updates

Blackadders LLP will use this information to deal with your enquiry. Our Privacy Policy explains how we take care of your information.

Request a home report for

Jeepers Creepers! Dismissal not within the range of reasonable responses for prankster employee

Blackadders LLP will use this information to deal with your enquiry. Our Privacy Policy explains how we take care of your information.

Request a viewing for

Jeepers Creepers! Dismissal not within the range of reasonable responses for prankster employee

Blackadders LLP will use this information to deal with your enquiry. Our Privacy Policy explains how we take care of your information.