Employee dismissed for snakeskin prank wins unfair dismissal claim
- AuthorMartin Cornforth
In the case of Mr J Richardson v West Midlands Trains Ltd an Employment Tribunal considered the fairness of the Claimant's dismissal for two pranks played on a colleague, which were deemed to be bullying and gross misconduct by his employer.
The Claimant had placed, a tarantula’s shed exoskeleton, in a colleague, driver A's pigeonhole. Driver A informed the Claimant that she disliked objects of that nature, but the Claimant went on to place a shed snakeskin in her pigeonhole. When driver A complained the Claimant was suspended and ultimately dismissed.
The Employment Tribunal found that the employer missed several opportunities to explore an informal resolution. The employer's anti-harassment policy referred to the possibility of mediation and informal resolution. Moreover, although driver A had raised a formal complaint, the employer could have gone back to her and explored her openness to resolving the issue informally. The thrust of driver A's complaint was that she wanted the pranks to stop, there was no evidence that she was seeking the Claimant's dismissal. Moreover, the Claimant had apologised at an early stage but there was no evidence that the employer had informed driver A of this, which may have prompted an informal resolution. As the Claimant was suspended, he was unable to apologise to driver A directly. The dismissing officer had expressed a belief that the matter could have been resolved informally. The Tribunal found that the employer's procedure had been unfair because of the failure to explore an informal resolution.
The employer's procedure was also deemed unfair because the employer had not properly considered whether the pranks were serious enough to warrant dismissal on the grounds of gross misconduct. The employer seemed to have decided that once bullying was established a finding of gross misconduct would be reasonable regardless of how serious the bullying was.
The Employment Tribunal decided that the employer unreasonably believed that the pranks amounted to gross misconduct. This issue hinged on whether the Claimant understood driver A to have been distressed by the first prank. The dismissing officer decided that this had been clear to the Claimant. However, the Claimant said that he thought driver A was joking and had not understood that she felt offended. Driver A only gave a short account of the conversation, describing the tone at one point as “over the top banter." The dismissing officer did not consider this evidence nor seek to clarify further with driver A the nature of the initial conversation with the Claimant. As such the employer lacked reasonable grounds to believe that the Claimant had understood the potential impact of the second prank on driver A.
The employer had also decided that the pranks intended to "shock" driver A. The Tribunal found that this stretched the meaning of the word "prank." The Tribunal found that a "prank" may involve fleeting surprise, followed by relief upon realisation that there is no serious threat. As there was no dispute that this was a prank the Employment Tribunal decided that the Respondent's believe regarding the Claimant's intention was unreasonable.
The Employment Tribunal decided that dismissal was not a reasonable response. The pranks were childish but did not involve any physical or abusive harm to driver A. The Tribunal decided that even if the employer reasonably believed that driver A had warned the Claimant to not play a further prank, a finding of gross misconduct would still have been unreasonable.
Dealing with cases involving pranks can be difficult for employers. Anti-harassment and bullying policies will often state that pranks could fall within the category of bullying. However, it doesn't follow that all pranks would justify a finding of gross misconduct, particularly if the issue is capable of being resolved informally. Pranks are more likely to be viewed as gross misconduct if they involve physical contact or relate to a protected characteristic such as race, sex, or disability. One difficulty employers face is that they have a duty to protect those complaining about harassment or bullying. A failure to take firm disciplinary action could be viewed as failing to protect the complainant, however a court is unlikely to criticise an employer for not dismissing a perpetrator, if they have considered the perpetrator's intention, the possibility of informal resolution, the extent to which the complainant was distressed, and the reasonableness of any distress.