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Homophobic singing at work

Pratikchha

Hello,

I just need advice on below situation

Employee 1 is playing random songs inside his office but rhyming "[employee 2] is gay". He would rhyme that line to any songs he plays in the office and rhymes it on top of his voice.

[Employee 2]'s office is next to this employee1 and can hear it every day as it is a very thin wall. Mike did not raise a complain hoping it would stop but it has been going on for months. Employee 2 eventually raised it to HR.

Employee 1 did ask employee 2 if he would raise a complaint when it first started and he said he won't hoping it was only once. Employee 1 then said good as if employee 2 was to raise a complaint he would do even more.

Some other employee heard it around canteen area where employee 1 has been going around singing and rhyming it at the same time.

I have taken advice however I have been advice it is not a gross misconduct as it is not a direct discrimination as employee 2 is not gay.

What do you think ?

Is this not a sackable offence?

I would like to hear suggestions on what you guys think of it?

Thank you

Parents

  • The first question is whether causing offence is sufficient to amount to misconduct, and the Forstater case, among others, demonstrates that it isn't. The right to free expression means that colleagues are entitled to express opinions that others would find offensive without putting their employment at risk.

    The second question is whether the conduct in question creates a hostile, intimidating, degrading or offensive working environment. I would say that the "reasonable observer" test would be sufficient to determine that this does, indeed, meet this standard. Regardless of the words used, hearing you name repeatedly rhymed in music over and over is going to be intimidating and degrading.

    Finally, we ask whether this bullying conduct meets the standard for harassment, i.e. pertaining to a protected characteristic. There are three forms of direct discrimination: ordinary, by association and by perception. This would fall into the category of discrimination by perception.

    But is it gross misconduct?

    Well, that depends on a lot of factors, including how long the employer has known this was going on without acting on it. If senior people were aware of the conduct but didn't act because employee 2 didn't complain, then it can't meet the definition for gross misconduct; otherwise they would have already dismissed Employee1 regardless of employee 2's feelings on the matter. If, however, this is literally the first they've heard of it then it could potentially be gross misconduct depending on the organisation's position on harassment.

    But there's another factor in play: that Employee1 has said he will do it even more if employee 2 complains. This is victimisation. Victimisation seeks to directly undermine and interfere with the employer's processes, preventing the employer from achieving their goal of an equitable and fair working environment. As such, it is likely to be gross misconduct, especially with the aggravating factor of conduct amounting to direct discrimination and harassment.

Reply

  • The first question is whether causing offence is sufficient to amount to misconduct, and the Forstater case, among others, demonstrates that it isn't. The right to free expression means that colleagues are entitled to express opinions that others would find offensive without putting their employment at risk.

    The second question is whether the conduct in question creates a hostile, intimidating, degrading or offensive working environment. I would say that the "reasonable observer" test would be sufficient to determine that this does, indeed, meet this standard. Regardless of the words used, hearing you name repeatedly rhymed in music over and over is going to be intimidating and degrading.

    Finally, we ask whether this bullying conduct meets the standard for harassment, i.e. pertaining to a protected characteristic. There are three forms of direct discrimination: ordinary, by association and by perception. This would fall into the category of discrimination by perception.

    But is it gross misconduct?

    Well, that depends on a lot of factors, including how long the employer has known this was going on without acting on it. If senior people were aware of the conduct but didn't act because employee 2 didn't complain, then it can't meet the definition for gross misconduct; otherwise they would have already dismissed Employee1 regardless of employee 2's feelings on the matter. If, however, this is literally the first they've heard of it then it could potentially be gross misconduct depending on the organisation's position on harassment.

    But there's another factor in play: that Employee1 has said he will do it even more if employee 2 complains. This is victimisation. Victimisation seeks to directly undermine and interfere with the employer's processes, preventing the employer from achieving their goal of an equitable and fair working environment. As such, it is likely to be gross misconduct, especially with the aggravating factor of conduct amounting to direct discrimination and harassment.

Children
  • in reply to Robey

    Kali made the suggestion that its been going on for a long time. - Thats why I suggested it might be some kind of student question or some assignment given at work.

    In the real world of work this would (I hope), have been dealt with quite simply. "Will you shut the fxxxk up about X!. I'm sick of listening to you". Might have been the response from some of my old work colleagues.

    I certainly would not tolerate this either as a line-manager or as a co-worker. Either way I wouldn't and do not care what the law says! Its not on!