“The most horrific abuse anyone has ever suffered in UK employment history” HO HO Hold on; Tribunal decides that seasonal Santa Claus car salesman was not discriminated against.
With the Christmas period fast approaching, it is time to put a festive twist on our weekly Blackadders employment blog. As the song states, It’s the most wonderful time of the year! Well, not for this Santa Claus. In the case of Mr. C Graham v. Swansway Garages Limited, Mr Graham was a car salesman. He held a second job as a seasonal Santa Claus which he had done for 10 years.
Over a 3-year period, the Claimant was subjected to abuse from his colleagues, including his line manager, where he was called a paedophile and other abhorrent slurs to that effect. These were explained as stemming from the Claimant’s role as Santa Claus, which was said to lead to his colleagues to conclude that the Claimant (a father) had an unhealthy interest in children. There were various inappropriate WhatsApp exchanges in the dreaded ‘work chat’ in what was described as “banter”. This resulted in Mr. Graham reacting aggressively to one of his colleagues and being dismissed for gross misconduct.
Mr Graham lodged a claim with the Employment Tribunal in which he complained of harassment relating to sexual orientation. As the title suggests, Mr Graham believed that he was subjected to ‘the most horrific abuse anyone has ever suffered in UK employment history’. However, evidence in the case outlined that he would also partake in the workplace ‘banter’ between colleagues, which appeared to be based on homophobia, racism, and other topics unbecoming of a 21st century workplace. This prompted the employment judge to state, “While it is not in dispute that the alleged abuse was vile and disgusting, this perhaps indicates the degree of hyperbole to which the Claimant is prone.”
Ultimately, the claim failed as the abuse, despite its nature, did not amount to sexual orientation discrimination. The judgement explained at paragraph 67. “Calling someone a paedophile is not related to his or her sexual orientation, because a paedophile could be someone whose sexual orientation was towards persons of the same sex or persons of the opposite sex or persons of either sex.”
While the Tribunal were prepared to accept that the Claimant was harassed, the Claimants failure to understand the legal definitions of sex and sexual orientation, and apply them accurately to his claim, caused his claim to fail (on one view, the employer got lucky – could this claim have succeeded if it was based on age?). However, the Tribunal did comment on the damage that a workplace with an abusive environment creates and its effect on employees. At paragraph 77, “The Tribunal did have sympathy for the Respondent’s argument that it was difficult for the Claimant to contend that the comments in issue had such a purpose or effect when he was a leading light in a toxic culture in which he was largely an enthusiastic participant. However, although it has been suggested that the comments were intended as banter or jokes, the Tribunal is also satisfied that the purpose of such comments was to shock and offend and, had any consideration being given to the position, it would have been appreciated that the effect was to create an intimidating, hostile, degrading, humiliating or offensive environment for employees such as the Claimant, even if, they themselves, were also guilty of creating such an environment.”
Employers should take account of the potential dangers of liability caused by a workplace with lax rules and procedures. A sensible employer will ensure that its employees are aware of and bound by disciplinary policies, harassment policies, and trained on the requirements of upholding standards on equality. An employee’s failure to abide by these rules should be subject to disciplinary procedure including potential dismissal for gross misconduct. Let’s not ask whether Mr Graham’s employment contract had any restrictions on taking up secondary employment – one for another day.