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Being harassed at work-Told Bosses but still facing the sack!


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Hi,

My friend at work has been harassed by another worker for over 18 months. The other worker has been constantly shouting homophobic comments such as 'Queer'. My friend has constantly reported this to his managers and up to two months ago the best he got from them was that they 'had a word' with the offending worker, this did not stop him.

 

After my friend raised a grievance with his employers about them lacking any action whatsoever after he reported yet another incident (and had two witnesses to the homophobic shouts directed at him) the employer/manager launched an internal investigation which included interviewing every member of staff to ask them if they had witnessed any abuse from either party (even though it has always been 100% one sided).

A few employees complained to my friend that they questions were phrased very unfairly towards my friend and not really allowed to elaborate on their answers (an example of this would be the opening question was 'Have you witnessed any abuse from either party to the other?' and the interviewee would say 'No' but would then attempt to say 'but he doesn't shout it directly to his face, just within earshot' but was cut short after the answer of 'no'!)

 

My friend then received a letter from his boss stating that his investigation failed to reach a definitive conclusion (i happen to know that 3 people signed a statement to confirm they have witneesed the abuse but 3 people claimed it 'was just banter'! Also the letter said 'both of you are aware there has been several attempts by the company to resolve your issue' (where all that has happened is the verbal promise from my friend's boss of having 'had a word' with the offending employee to stop) and 'despite the company receiving assurances from both of you that the issues would be resolved, this is patently not the case' (which is impossibly as my friend hasn't given any assurances as he hasn't ever done a thing wrong, all he has done is constantly reported the harassment) and 'as a final attempt' is offering to pay for mediation via Acas.

 

My friend sent a letter back pointing out the two errors in the letter (the two quotes i have mentioned earlier) and that he was so keen for the abuse to stop that he was willing to pay half the cost of mediation and was willing to participate in his own time. This letter has not received a reply but he has been told when the time and date of the mediation is (This monday).

 

Am i right in thinking that my friend has been very harshly treated by his employers?

And would you agree that it looks very likely that my friend and the offending employee are basically close to being sacked?

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Considering this entirely neutrally (which is what a tribunal would have to do) there is little actual evidence that the employer has acted "harshly", as you put it. This isn't a sattement of support for the way they have acted, which I do not think is appropriate or well-advised - but I can see the "legal defence" they are attempting to build, and it's not to bad an attempt at following due process. And whilst I do not think that dismissal for one or both employees is impossible, not can I draw any inference from what you have said that this will happen or that the employer is currently contemplating such a course of action.

 

It's rather a poor show, therefore, that your friend and the employer (and you) have missed the case clinching eviidence! Three people, in the employers words, gave evidence that they had witnessed the alleged discriminatory (in law) remarks and they were just banter. Case closed. The employer isn't allowed to decide that they are just banter! In law it doesn't matter whether they were banter or not. All that matters is that the remarks were made (and the employer has agreed that they were), that the recipient of the remarks took them to be discriminatory (which he did) and that they were reported as such. As such, whilst participating in the mediation is a good idea, I would advise that he calmly restates his case from this angle, and maintains (assuming it is true of course) his version of events and the fact that this has not been a two way dispute (not that that matters entirely - homophobic comments are still discriminatory). If the employer does not put a stop to these comments, and decisively, then they become vacariously libale for the comments and can also be sued for discrimination.

 

If the mediation is ineffective, then I would strongly suggest legal advice (and that he saves his money for that - the employer is liable for the mediatio and he was stupid to offer to pay towards it!)

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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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im sorry but i find this whole scenario disgusting, your friend is suffering discrimination and bullying, would you not say. im so angered by this post, there is no need for anyone to have to suffer what your friend is going through now, whats all this about equality and diversity? its obviously not happening in your friends work place. people and businesses have been sued for less, investigate this further, no one should have to put up with it.

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Hi and thank you for your posts!!

I agree regarding the 'banter', it was my opinion that it is irrelevant whether the employers or the co-workers believed the comments were 'banter', the worker has admitted shouting them but claims that they were 'meant for somebody else'!

Yes my friend is a member of the GMB but unfortunately he has only this week had to request that a different representative take over the case as the rep who had been 'advising' him hasn't really wanted to know.

Also, what i haven't mentioned is that a few months ago he reported to his employers and the police three things:

1, the homophobic comments during work

2, being 'tailgated' by the offending worker's friend, which started within the work car park and continued into the nearest town

3, the fact that the offending worker shouted 'Queer' at him outside of work and had/has a video on his phone showing this.

The police came to our place of work and interviewed the two workers and gave them warnings but not a 'caution'. The employer then gave them both a final written warning but then took them back when the two workers appealed saying that the incidents of tailgating and of shouting 'Queer' happened outside of work. My friend argued that the homophobic comments still happened during work hours but nothing further happened!

 

Also, my friend has requested that he can see the witness statements but has yet to receive a reply from the HR department, please can anyone advise whether he is legally able to do this?

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Yes my friend is a member of the GMB but unfortunately he has only this week had to request that a different representative take over the case as the rep who had been 'advising' him hasn't really wanted to know.

 

Now, why does that not surprise me!! Let me know if a different rep is any different please.

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THIS CAN AND IF CONTINUES BE CLASSED AS CONSTRUCTIVE DISMISSAL

 

HAVE A NOSE

 

THIS IS VERY SERIOUS AS THERE ARE NEW LEGISLATION IN THE WORK PLACE TO PROTECT PEOPLE WHO HAVE DIFFERENT SEXUAL ORIENTATION. THIS IS A EUROPEAN DIRECTIVE AND NOW UK LAW AND THE ONUS IS ON THE EMPLOYER TO INVESTIGATE AND DEAL WITH

 

IT DOES NOT MATTER IF THE PERSON IS GAY/STAIGHT/ SKY BLUE PINK

 

I WOULD NOT TOLERATE THIS IN MY WORK PLACE

 

THE ODD COMMENT STILL OCCURS (BANTER) BUT THE DIFFERENCE IS THAT ITS NOT MALICIOUSE AND A QUIET WORD IS ALL THATS NEEDED

 

 

http://www.direct.gov.uk/en/Employment/RedundancyAndLeavingYourJob/Dismissal/DG_10026696

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Hi and thank you for your posts!!

I agree regarding the 'banter', it was my opinion that it is irrelevant whether the employers or the co-workers believed the comments were 'banter', the worker has admitted shouting them but claims that they were 'meant for somebody else'!

Yes my friend is a member of the GMB but unfortunately he has only this week had to request that a different representative take over the case as the rep who had been 'advising' him hasn't really wanted to know.

Also, what i haven't mentioned is that a few months ago he reported to his employers and the police three things:

1, the homophobic comments during work

2, being 'tailgated' by the offending worker's friend, which started within the work car park and continued into the nearest town

3, the fact that the offending worker shouted 'Queer' at him outside of work and had/has a video on his phone showing this.

The police came to our place of work and interviewed the two workers and gave them warnings but not a 'caution'. The employer then gave them both a final written warning but then took them back when the two workers appealed saying that the incidents of tailgating and of shouting 'Queer' happened outside of work. My friend argued that the homophobic comments still happened during work hours but nothing further happened!

 

Also, my friend has requested that he can see the witness statements but has yet to receive a reply from the HR department, please can anyone advise whether he is legally able to do this?

 

There is no requirement for the employer to show or give him the witness statements - and quite a few legal reasons why they shouldn't! They are statements given to the employer for a specific reason and confidential between the employer and the employee giving the statement - nobody else.

 

The employer is correct - ish in terms of incidents that happened outside of work. They can be taken into account, but it entirely depends on the circumstances, and a dismissal on these grounds, whilst not necessarily unfair, is somewhat "iffy" unless there is a clear potential for "bringing the employer into disrepute".

 

I do not think that I can add much more to my previous advice at this stage. The employer appears to have admitted that such incidents have been witnessed on work premises by colleagues and has suggested mediation. This would be an entirely reasonable thing to do. It is clearly their responsibility now to stop this behaviour, but there is little that can be done in terms of employment law unless they fail to do so.

 

It might be helpful to people to paste a link to the other thread that you have on MSE so that people can see what has been said there - that way people are not duplicating advice at length that you have already received elsewhere.

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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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PS - It did occur to me to ask this before, but since you have mentioned on MSE that your friend is not gay (not that that matters in terms of the inappropriate behaviour), but this made me think of it again - can you offer any explanation for why this person and his friend have taken up such behaviour? It is just that it seems rather "out of the blue" and somewhat "intense" (especially the tailgating) given that the comments are untrue. Don't get me wrong - I despise such behaviour anyway. But it makes me wonder why they are focussing this attention on him. Particularly in the context in which you seem to think that your friend is as likley to be dismissed as the perpetrator - although I cannot honestly see why you think this as there isn't any such indication in the information provided. Has there been some sort of dispute in the past? Is there some explanation, however irrational, for what these two people are doing?

--------------------------------------------------------------------------------------------------------------------------------------------------------------------

I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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