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In February 2021, the Employment Tribunal decided an unfair dismissal and breach of contract claim (for notice pay) by Mr Staines, who had been employed as a fire fighter for 14 years, by the North Yorkshire Fire and Rescue Service.
Before the more recent allegations of harassment, Mr Staines had on a number of previous occasions in May 2019, referred to a female fire fighter as a bitch. He had received a final written warning to remain live on his personnel file for 18 months.
Despite subsequently attending a bullying and harassment education programme, Mr Staines was reported again in mid-July 2019. This time by three fellow fire fighters who complained that Mr Staines had used inappropriate language in relation to a Mr Metcalfe, also a fire fighter.
It was alleged that Mr Staines had greeted Mr Metcalfe, who was openly gay, with homophobic language, by saying that he was "not a real man, only half a man". Mr Staines' defence was that he had clarified during the investigation that he was not being homophobic but was rather just poking fun at Mr Metcalfe's stature, by calling him "Arthur Man, Half a Man", and claimed that it was just banter.
A further allegation was made against Mr Staines by a female fire firefighter who alleged that on 30 July 2019, when on standby at a different fire station, Mr Staines had, among other comments, remarked that his female colleague had been "well trained" in respect of answering the phones, when he saw her taking a call from Control.
A disciplinary investigation was duly carried out and Mr Staines was ultimately dismissed without notice on the basis that he was found guilty of both allegations, and already had a final written warning on file. The disciplinary hearing noted that whilst Mr Staines may have intended the "half a man" comment as reference to height, it was not unreasonably understood by the recipient at the time to be reference to his sexual orientation.
The Tribunal generally did not fault the reasoning for the dismissal and found it was fair.
However, it did not consider that the allegations were sufficiently serious so as to amount to gross misconduct, justifying a dismissal without notice, and on that basis, it concluded that the Fire Service should have dismissed Mr Staines with notice. The breach of contract claim (for notice pay) therefore succeeded with a minor 10% uplift given, due to an inexplicable delay at the appeal stage.
Policy. Training. Repeat. Employers should ensure that employees receive regular training in bullying and harassment, and to deal with any allegations promptly in accordance with their policy. Although "banter" is frequently given as an excuse by employees, to describe inappropriate comments or behaviour, employees should be reminded that this could still amount to harassment if the unwanted conduct has the purpose or effect of violating a person's dignity or creates a hostile environment for that person, whether it was intended to or not.
Employers should also consider whether the instant allegation is one of simple misconduct or gross misconduct justifying summary dismissal, as the former entitles the employee to notice pay on dismissal.
If you'd like advice relating to any of the issues discussed in this article, please get in touch with our employment team.
