Hi there. Philip Pearson-Batt here bringing you the latest lowdown on (employment) law.
Before I get my legal hat on, I’d like to set the record straight: when I was on annual leave the other week, I wasn’t in Italy.
Don’t worry – Italy isn’t happening until June so I’ve still got plenty of time to talk about that. No, this time, I was using up some excess annual leave before the end of our holiday year. Not sure how I ended up with excess leave, given I had a month off in November (haven’t mentioned that in a while, thought I’d get it in!)
I spent my week off stressing about cars. I took mine in for its MOT on the Monday, thinking all would be fine. I made sure it’d had regular services and a new set of wheels earlier in the year. But no. It failed. Thus ensued what my husband would describe as a “tantrum” and what I would describe as a calm and reasonable reaction given the amount of money I had put into the car and the amount of faults it had had.
The rest of my week was spent doing one of my least favourite things: car shopping. But don’t worry, I ended getting a lovely (like new) Kia Ceed.
If you want my top tips for car shopping then I find its best if it goes something like this: walk into the salesroom looking lost and say “I don’t know anything about cars”; nod along as they run through the car’s specifications when really they could be speaking Italian for all you know; ask if you can play your podcasts/musical theatre cast recordings on the media system; then negotiate hard. You’ll have lulled them into a sense of security and them bam, they won’t know what’s hit them! Honestly, my best tip is to go with someone who knows about cars. Unfortunately my very excellent Dad was working and so unavailable.
But enough about my misadventures. Let’s talk about the misadventures of a certain Mr Richardson.
A recent Employment Tribunal decision involving Mr Richardson has provided us employment lawyers and HR professionals with some guidance on how to handle pranks in the workplace (how apt, given it has just been April fools day.)
In Richardson v West Midlands Trains Ltd, Mr Richardson (the Claimant) was dismissed for gross misconduct following his pranking of a colleague.
The Claimant’s first prank was to put the shed skin of a tarantula in a colleague’s pigeonhole. This was after she had made clear she was squeamish about spiders. Unsurprisingly, the colleague was distressed and in a conversation with the colleague swore at him. His reaction? To say he might put a snakeskin in the pigeon hole.
Apparently, the Claimant just thought they were having banter so didn’t really take what the colleague was saying seriously. He went ahead and put the snakeskin in her pigeonhole. Quite where he was getting these skins from, I do not know. In any event, she reported this to her line manager and the Claimant was ultimately dismissed for gross misconduct.
He brought claims against his employer in the Tribunal for unfair and wrongful dismissal. The Tribunal upheld his claims, finding that they were harmless and childish pranks and didn’t warrant dismissal.
Now, this doesn’t mean that employees can get away with these sort of reckless actions carte blanche – remember from our sessions, the banter/harmless fun defence very rarely works!
No… in this case, everybody was agreed that the Claimant’s pranks were ill-judged and that they amounted to misconduct. At the heart of the Tribunal’s decision was the fact that the pranks did not, however, reach the threshold for gross misconduct and so dismissal was not reasonable in the circumstances.
The Tribunal provided some very helpful guidance to assist in assessing whether workplace pranks are appropriate and how employers should deal with them. Let me run through that guidance now for you:
- Context is important. Employers should think about whether there was risk of harm or business interruption or whether the pranks amounted to unlawful harassment or discrimination under the Equality Act 2010. The more serious the prank, the higher risk of harm or the more likely it is to constitute harassment/discrimination, the more reasonable a harsher sanction will be.
- Many pranks will be considered as bullying and might constitute misconduct which would warrant some sort of disciplinary action. However, not all pranks would be serious enough to constitute gross misconduct warranting dismissal.
- Continuing to perform pranks after being asked to stop may be more serious than the pranks themselves.
- Employers should assess the reaction of the employee who was the victim of the prank. In Mr Richardson’s case, the colleague didn’t want any particular sanction to follow, nor did she suggest her working relationship with the Claimant had been destroyed. In situations where the victim does make suggestions that they cannot work with the other individual again, then that may warrant a harsher sanction.
- Employers should also assess the employee’s motives behind performing the prank: was this good humoured or something more sinister?
What is clear from this case is that context is key. We say this in our Banter sessions – there is nothing to say you should not have a joke with colleagues but you should think carefully before engaging in banter and make sure you know where the appropriate boundaries are. For employers dealing with these sort of issues, its about assessing each case individually and making sure your decisions are reasonable in the circumstances.
If you’re not sure how to handle pranks in the workplace then you know where to go. Come and speak to us at Precept and we will guide you through what to do. I promise we’re not squeamish – we’ve seen/heard pretty much everything!
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