Area of work: Employee Grievance
Date/Length of relationship: 2014 – present
This example concerned an employee who raised a complaint of Racial Harassment in response to an image sent by his head of department to him and his team on Slack (a business communication platform). The team were under pressure to complete a project with the deadline imminent and the departmental head was experiencing significant frustration with the contribution of the employee concerned and forwarded to the team, via Slack, a GIF with the title being employee’s name. The GIF was of a certain animal, which has in the past been used in a derogatory manner towards certain racial groups, pushing a computer off a desk in frustration.
The employee raised no issue at the time, but later claimed he was advised by his colleague to raise the matter with HR, saying “that is really bad”.
The employee’s direct line manager had two separate meetings with the employee over the course of the following month, to discuss issues with his performance, and on neither occasion did the employee mention the incident involving the GIF.
However, as the performance concerns escalated and the employee was challenged, with corroborating evidence, about his failure to follow management instructions relating to the same, the employee raised a formal complaint about the incident.
During the investigation which followed, the Departmental Head admitted to sending the GIF, explaining that it was to illustrate his own feelings of frustration towards the employee, and that the animal which had been used in the GIF had been intended to be, if anything, a reference to himself and not to the employee.
The employee’s grievance was partially upheld and disciplinary action was taken against the head of department. It was concluded that whilst inappropriate, the email was not racially motivated, but there was no denying that there had been a serious error in judgment In addition to the disciplinary sanction, and perhaps more importantly, another outcome of the grievance was equality and diversity training and coaching for the departmental head.
The employee subsequently resigned and lodged a tribunal claim alleging that he had been constructively dismissed (on the basis of a fundamental breach of the implied term of trust and confidence) and subjected to direct race discrimination and racial harassment.
The claim was settled before it reached hearing because although the intent behind an action such as sending the GIF is important, so too is the effect (even when it is unintended) and not only could that error in judgement have resulted in an award of compensation but also subjected the employer to a risk of bad publicity. The problem is, even when it appears that the employee has stored the incident in their back pocket to get themselves out of a sticky situation at some later date, it can be hard to disprove effect. The next defence for an employer would be the statutory defence but this required a history of policy, action and training that few employers can satisfy.