Recipe alert: you cannot make an omelette without cracking an egg or two.
So, when is offence actually offensive?
The perception of the person claiming harassment is key in determining whether harassment has occurred. Did you know that the existence of offence is an entirely subjective concept? Offence exists in the eye of the beholder only.
Here is a conceptual issue for you. Can offence be a retrospective event?
A recent case brings this fundamental point to life.
The employee – a driver with the Royal Mail – has Asperger’s Syndrome and felt disadvantaged by his working pattern and duties. More than that and related to it, relations between two colleagues broke down causing them to submit bullying and harassment complaints against him. These complaints were upheld following an investigation.
The employee then submitted his own grievance which alleged he had been harassed by management, by the two colleagues spreading rumours and then also by those employees making negative comments about his disability and overtime rates. The grievance was rejected following a further investigation. The Employment Tribunal found that comments about him could have the effect of violating his dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him but only once he became aware of those comments. Critically for the employee, he only actually became aware of the comments during the grievance investigation process.
The employee appealed the Tribunal’s decision and argued that a person’s dignity could be violated even when the employee was not aware of the unwanted conduct. This was rejected by the Employment Appeal Tribunal who found that it was inevitable during a bullying and harassment investigation that information would emerge which the complaining employee might not like. The EAT upheld the Tribunal’s decision: it was found that no harassment had occurred as the employee had not been aware of the comments made about him.
What should we learn from this in terms of practical application?
We say that employers should never shy away from the truth and that any investigation (into a grievance or a matter of misconduct or anything else) should be open, transparent and thorough. The whole point of a reasonable process and sensible scrutiny of the facts is that it may ruffle feathers. How does a reasonable employer conduct its business if it is to be curtailed by the prospect of shame or embarrassment? Offence can be caused to any employee at any time. However, to sound in law (and damages) that offence needs to be contemporaneous with events and not retrospective.
