In a recent case before the Employment Tribunal, Mr Sieberer brought a claim of unfair dismissal against his employer, Apple Retail, following the decision to dismiss him for gross misconduct, after he had taken two non-consensual photos of a female colleague which he sent to his colleague, Thomas.
The tribunal found that Mr Sieberer had been unfairly dismissed – we analyse below what this means for employers and outline best practice when dealing with allegations of harassment.
The Facts: Mr C Sieberer v Apple Retail UK Limited
Mr Sieberer sent a photo of a female colleague (“M”) who was working in the canteen, with her name visible on her work pass, making the comment “you’re welcome Thomas”. Thomas had previously made comments about female colleagues in the office referring to them as “work wives”. He responded to the photo saying “Look at bae there…so cute” and “That’s my girl”. Mr Sieberer had taken a second photo of a female colleague which he sent to Thomas but deleted shortly after.
A female colleague (who was not the subject of the photos) complained to a manager about Thomas’ behaviour. Consequently, Mr Sieberer (and Thomas) were subject to disciplinary proceedings, resulting in Apple sacking Mr Sieberer for gross misconduct on the grounds that his behaviour constituted harassment.
The Law
For behaviour to amount to harassment under the Equality Act, the conduct must:
- be unwanted;
- relate to a relevant protected characteristic or be of a sexual nature; and
- have the effect of violating the person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
The tribunal will also take into account the perception of the subject of the unwanted conduct, the circumstances of the case and whether it is reasonable for the conduct to have that effect.
For a dismissal to be fair:
- The employer must show that the reason for the dismissal was a potentially fair reason – either capability, conduct, redundancy, statutory restriction or some other substantial reason; and
- The tribunal finds that in all the circumstances, the employer acted reasonably in treating that reason as a sufficient reason for dismissal.
When relying on misconduct as a reason for dismissal, an employer must also show that:
- They had a genuine belief that the employee was responsible for the misconduct;
- They had reasonable grounds on which to base that belief; and
- They had carried out as much investigation as is reasonable in all the circumstances.
The Judgment
The judge found that Mr Sieberer was dismissed due to the belief that he was guilty of sexual harassment after taking and sharing photos of female colleagues.
When deciding whether any harassment had taken place, the judge found that “someone has to be offended for there to be harassment. As M was unaware, the only person who was interviewed who saw the photos…did not refer to them in terms which indicated any such reaction”. The judge found that Apple may have conflated Thomas’ comments made about the subjects of the photos, with Mr Sieberer’s actions of taking the photos.
The judge did not agree that Apple’s internal policy set out a lower threshold of harassment and that the actual policy was vague, with harassment not clearly defined. The judge stated that there were no reasonable grounds for the decision at the time that Mr Sieberer had committed sexual harassment or any harassment. The taking of the photos without consent was not automatically harassment and the effect of the photographs had to be considered.
Consequently, the judge found that dismissal did not fall within the range of reasonable responses of a reasonable employer and that “taking two photos of a colleague and sharing them with a small audience is not something that any reasonable employer would treat as a grounds for dismissal”. The judge described Mr Sieberer’s conduct as a “stupid form of engagement with Thomas’ teenage style crush”.
The Impact
This judgment underlines the importance of having clear policies setting out what constitutes gross misconduct and harassment. Apple relied on internal policies to dismiss Mr Sieberer, but his conduct did not meet the legal definition of harassment and their internal policy was too vague to support such a decision.
The judgment also highlights that where there are multiple employees that are being investigated for linked misconduct, it is important to not confuse the misconduct of one employee with the actions of another. Having different parties investigate and hold meetings with each employee is one way to avoid such issues.
Whilst some behaviour may be unsavoury, whether this amounts to harassment depends on the effect and purpose of such behaviour. Unwanted conduct on its own will not amount to harassment, if this does not have the effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
For more information or advice on this or any other Employment Law & HR issue, please get in touch with Nic Elliott, James Symons or Laura Robinson on 0115 9 100 200, or complete this form with all the details.
Posted on August 9, 2024
