We have a disabled maintenance fitter who phoned his boss to tell him he would not be able to get to complete a job as the site closed at 4pm on that day, and he and his assistant did not have time to finish the work. His boss said nothing, but immediately after the conversations turned to a colleague and said that the fitter was a ‘bullshitter’ and his job should would be better performed by someone who is able bodied. Unfortunately he accidentally ‘pocketdialled’ him, so that the fitter (and his assistant) heard these comments. After sending his boss a photograph of the compound opening times to prove his point, the fitter called him back. The Manager advised that if the fitter was pocket-dialled by him in future he should hang up. The fitter suffers from muscular dystrophy and has 10 years service.
The comments are likely to amount to a “violation of his dignity” and have the effect of creating “a degrading or humiliating environment”. This is because a broad band of conduct is caught by the statutory definition of harassment. An employer’s defence that a comment related to a protected characteristic was not directly communicated to the individual, who merely overheard this, will not be sufficient to avoid a claim of harassment.
Comments relating to protected characteristics should not be made within the workplace. Regardless of whether the individual is present at the time or not, such a comment could give rise to a claim of harassment. All management communications, whether verbal or in writing, should steer clear of any derogatory or abusive content. The fact it was overheard ‘accidentally’ does not provide a complete defence, but it would have been much worse had they been made openly or he was meant to overhear them.
In a recent high profile case a company escaped the wrath of a tribunal, because of a colleague’s comments about someone being a ‘fat, ginger pikey’. The judge in the Employment Appeal Tribunal said:
“I accept that at first blush it may be surprising that calling a colleague what many people would consider an offensive term such as ‘fat ginger pikey’ at work does not amount to harassment, especially where the individual has links with the traveller community, but the tribunal considered the facts extremely carefully and it is easy to see why they concluded that the claimant had not been harassed by this remark and it was unarguably a decision the tribunal was entitled to come to.”
The Company only got away with it because the employee took it in good heart and generally gave as good as he got (and worse). Had the comments been overheard by someone who found these comments offensive, then they would have had a strong claim, even though the comment had not been directed at them.
Apart from the legal risks you need to do something to remedy the situation if you wish to maintain a positive work environment. You should certainly be considering some sort of disciplinary action against the Manager and asking him to apologise to the aggrieved colleague. If the Manager will not apologise then more serious disciplinary action will be required, and the Company should certainly apologise and do their best to reassure the fitter that he is valued and supported.
The Manager’s actions have the potential to undermine the duty of mutual trust and confidence which is necessary to maintain a good working relationship. You need to train all employees and create a working atmosphere that is not just supportive of disabled people, but does not create situations which are offensive to anyone with the nine protected characteristics or who have other discrimination rights.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.