Can racial harassment constitute gross misconduct?

by Direct2Lawyers on March 11, 2013

  • SumoMe

A recent excerpt in the Daily Telegraph reported the dismissal of a police officer for making racially-motivated comments towards another colleague in the Metropolitan police force. We’ll take a look at the above matter in this article and examine whether racial harassment can constitute grounds for gross misconduct and potential dismissal.

In the case reported in the Telegraph, Mr Hughes was employed by the Metropolitan Police when he made the ill-advised step of comparing a black colleague to a monkey. This resulted in an Independent Police Complaints Commission and investigation and a prosecution by the CPS for racially-aggravated harassment. The Westminster Magistrates Court dismissed the prosecution’s case and found Mr Hughes not guilty but Mr Hughes was subsequently subjected to an internal investigation and disciplinary proceedings by the Metropolitan Police. This resulted in his being dismissed for gross misconduct.

As the above example might suggest, racial harassment in the workplace (and, indeed, outside of the workplace) can be regarded as misconduct by an employer. There is no statutory definition of what “misconduct” is but there are a number of generally-recognised reasons that would probably amount to gross , including violence, abusive conduct, unauthorised lateness or absenteeism, being under the influence of alcohol or drugs at work, disobedience, and behaviour which undermines the implied duties of fidelity and/or good faith.

Gross misconduct occurs when an act that an employee carries out is so serious in itself – or its consequences are so serious – that it may warrant dismissal for a first-time offence. The above-listed incidents may constitute grounds for a finding of gross misconduct. You should also check your contract of employment or staff handbook to determine what actions or omissions may be deemed to be grounds for gross misconduct. A failure to specify whether an act would constitute gross misconduct may lead to a finding of unfair dismissal in the Employment Tribunal.

So, is racial harassment gross misconduct?  Intuitively, it probably is – it amounts to abusive or offensive behaviour in the workplace as it not only potentially offends the harassed person but it also exposes the employer to the risk of claims from the harassed person under the Equality Act 2010. This could give an employer good grounds for finding that the employee had committed an act that amounted to gross misconduct and dismissing them.

Whether an employee will be dismissed for racially harassing another employee (or a third party) is a question of fact and degree in the circumstances. Employers must take into account the facts of the matter and aggravating and mitigating circumstances, and come to a reasonable conclusion whether to dismiss (which is based upon a fair and reasonably thorough investigation). In Mr Hughes’ case, it was found that there were not sufficient mitigating circumstances to warrant his not being dismissed. However, it was found that a colleague of his – Mr Hair – who had also allegedly racially harassed a colleague, had not intended to cause offence to the harassed person and he was therefore given a final written warning.

Direct 2 Lawyers can put you in touch with solicitors who offer employment law advice and compromise agreement advice

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