Q&A

Legal questions and answers

Q  We have a close sales team, who
work under pressure to demanding targets. There is a lot of "banter"
and jokes against individuals which has always been part of their working life
and has never been objected to by any of the team. A Welsh individual has joined
the sales team and finds this unacceptable and has raised complaints about
jokes which have been made because he is Welsh. We are considering terminating
his contract as he does not seem able to work in this environment. Are we able
to do so?

A  Practically there is
nothing to stop you dismissing him but you should be aware of certain risks if
you do. This individual has raised grievances which you are under a duty to
investigate fully. The banter he is subjected to during his working life is causing
him distress and is capable of amounting to racial harassment, on the grounds
that he is being subjected to jokes which otherwise he would not have to face
on the basis that he is Welsh.

The Welsh are a nationality within the meaning of race discrimination
legislation and can therefore be protected against harassment. As with all
cases of harassment under discrimination law it is not the motive of the people
making the comments that is the guiding factor, but their subjective effect on
the individual.

Dismissal in these circumstances without a full investigation and seeking to
remedy the behaviour complained about would leave the individual able to claim
that his dismissal was linked to his nationality and may found the basis of a
race discrimination claim against you, in addition to potential wrongful and
(in cases where the employee has one or more years’ service with the company)
unfair dismissal claims. Equally, where you have received complaints of this
nature and you fail to act, should he resign, he may then be able to claim
constructive unfair dismissal as well as wrongful dismissal and race
discrimination.

Q We have reason to believe that an employee has been accessing
pornography on the Internet during office hours. Do we have justifiable grounds
to sack him?

A  Not necessarily. You should
always carry out a proper investigation and procedure, even if you consider the
actions of the employee amount to gross misconduct warranting their instant
dismissal.

First, you need to consider what evidence you have that the employee has
been accessing pornography. Have you been told by other employees? Can you
obtain statements from them?

You may want to access his computer but you should consider first whether
you have a communications policy that lets you do this. Remember that
generally, an employer does not have an "automatic" right to access
or monitor an employee’s e-mails or Internet use without consent.

If you do not have a policy then, provided the allegations are serious, you
would probably be justified in checking which sites the employee was accessing.
You should also check whether it has been made clear to staff that they should
not access certain sites.

One important point to consider is what the employee has actually been
accessing. The adage, "One man’s porn is another man’s page three" is
true in cases such as these and, ultimately, it is a subjective decision which
the company must make.

You should always ensure that a proper procedure is carried out, and that
the employee is given an opportunity to respond to the allegations.

Compiled by the legal team at Olswang, www.Olswang.com

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