it matters not whether he is gay or not. he and others are likely to find it offensive
There is case law.

English v Thomas Sanderson Blinds [2008] was a case in which a heterosexual man was subjected to homophobic harassment. This was pre Equality Act 2010. This seems to me to be harassment on the grounds of sexual orientation - whether or not employee 2 is gay is not relevant - and should be investigated according to existing policies, acknowledging that there's risk to the business if this is allowed to continue.

Kali - welcome to the community.

I don't know whether this is some kind of assignment, but it would help if you gave your opinion.

If this has been going on for some time and you have heard the singing for some time. Did you not think to raise a complaint yourself?.

The fact that employee 2 has not raised a complaint is neither here nor there. I don't think it matters a jot whether employee 2 is, or is not gay, lesbian, cross dresser or anything else. In 2023 no one should be saying or singing that sort of thing.

I'd like to hear your opinion of whether you think gross misconduct or not and why? Has the employee a disciplinary record and if he has what was it for?

David

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.

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!

I'm generally less inclined to take formal action unless Employee 1 is being malicious. I would have a recorded conversation explaining how the singing can be perceived and the consequences of it. Share the dignity and disciplinary policies. Should the singing continue then you would have no choice but to take formal action. Dismissal is always the last resort and can be frowned upon in tribunal if you jump straight to it. I would certainly consider a first or final warning. Maybe coming from manufacturing, the language can be much worse than this example.

In reply to Stephanie:

Dismissal should be a last resort, yes.

The setting would help to provide context but shouldn't matter in 2023. This sounds like childish behaviour that should have been nipped in the bud early on by a line manager. It sounds rather pathetic really, and if this employee is told to stop and doesn't... follow due process and get rid if necessary.

Hi Kali, I think you have a range of views below and I'd echo them. This is not acceptable behaviour at work. People need to be professionals at work and this is not acceptable.

I'm wondering what this says about the workplace culture and people's ability to speak up and let others know that, whilst they might behave in certain ways outside of work, inside work people have to be treated with respect. This person needs to be told this cannot continue and if it does disciplinary action will taken which could ultimately lead to their dismissal. I'd then start looking at what's going on for this to continue so long without action being taken.

I also think that you should address this issue informally, before resorting to formal action. Get the line manager to have an informal discussion with Employee 1. It should be recorded, and the line manager will have to make it clear that this behaviour is not acceptable and that if it carries on, it may lead to a formal disciplinary process i.e. give him a recorded informal warning. Did you ask Employee 2 what his preferred outcome would be? People usually want the misbehaviour to stop. If it does, then great. If it doesn't act swiftly and take it to the formal stage. You should always start with a thorough investigation and go from there.