Santa Banter, Toxic Culture or Discrimination?

Nov 21, 2023

Mr Graham worked as a salesperson for Swansway Garages (the “Company”), a car dealership for three years, while also working part-time as a Father Christmas at a local grotto. When his Sales Manager, Jon Gill, found out about his part-time job, Mr Graham became the subject of cruel jokes and name calling, including being called a “sexual predator”, “paedo” and “kiddy fiddler”. Mr Graham claimed this abuse was daily, over a period of three years, including on their work WhatsApp group. Mr Graham was sacked on 3 September 2020, following a disciplinary into an altercation with another staff member, after this person described him as “the one who likes to play with kids”. Mr Graham claimed that he had suffered discrimination on the grounds of sexual orientation.

Discrimination

Sexual orientation is one of the 9 protected characteristics under the Equality Act 2010 (“EqA”) and an employee who is treated less favorably because of their sexual orientation, will have grounds to claim discrimination. Sexual orientation is who you are sexually attracted to, whether that be the same sex, opposite sex or the same sex and opposite sex. Anyone can be the victim of sexual orientation discrimination, which will include any sexual orientation not described within the three definitions above. Discrimination can also manifest itself in several different ways, including direct and indirect discrimination, plus harassment and victimisation.

Mr Graham failed to articulate within his claim the basis upon which the comments might be alleged to be related to sexual orientation, all Mr Graham did was link the comments to his seasonal work as Father Christmas. However, during the hearing it became clear that Mr Graham had associated being a paedophile with being gay.

Decision

The Company accepted during proceedings that there was a culture of vile and abusive behaviour, which Mr Graham often joined in on, throughout the three years he was employed. On the occasions where the abuse was directed at Mr Graham, calling him a paedophile would clearly be unwanted. The Tribunal found that Mr Graham has applied an incorrect and homophobic meaning to the word “paedophile” and that calling someone a paedophile is not related to a person’s sexual orientation, because a paedophile could be someone with any sexual orientation. Mr Graham also sought to argue that the comments must relate to sexual orientation because they were comments about sex. The Tribunal ruled that comments may refer to the act of sex, and that someone having sex will be of a particular sexual orientation, but that does not, in itself, cause such a comment to be related to sexual orientation. The Tribunal ultimately concluded that the comments related to sex (in the sense of the sexual act) rather than sexual orientation and therefore Mr Graham’s claim failed.

There might have been some gender basis to the comments, in so far as Father Christmas is often a male, but it does not link the comments to be related to sexual orientation. Mr Graham had previously sought to amend his claims, a year into proceedings, to include sex discrimination and constructive unfair dismissal – which may have had more fruitful results for him. The Tribunal had previously ruled that the amended claim was out of time and that there had been a serious and avoidable delay on the part of Mr Graham in amending his claims. Despite Mr Graham being a litigant in person, the exercise of the Tribunal’s discretion to extend the time limit for a claim is an exception rather than a rule. In relation to his attempt to introduce a constructive unfair dismissal claim, Mr Graham gave evidence during the hearing that he was dismissed by letter and never resigned, and therefore the Tribunal held there was no claim for constructive unfair dismissal to be bought, as he had not actually resigned.

Learning Points for employers

This serves as an important reminder that companies are well advised to have robust workplace policies. Furthermore, effective communication and training employees on these policies are critical to improving the general culture of an organisation.

The first stage will often be making sure, as an employer, you fully understand the issue(s) involved. Tackling issues of inequality and discrimination is likely to improve a company’s reputation, and in turn have a positive impact on performance. Employers are advised to remember that a failure to create a positive work culture could leave them open to a Tribunal claim, and as compensation for discrimination is uncapped, a successful discrimination claim could result in a significant award.

For help and further information, or to discuss the issues raised in this case, please contact us to speak to a member of our Employment Team.

This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

Darren Smith

Darren Smith

Partner, Employment Law

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