Girls On Film: innocent photos, or secret workplace harassment?
Posted on 19th July 2024 at 13:37
If one employee takes surreptitious photos of another in the workplace, and shows them to others, can this amount to harassment, even if the colleague taking offence is not the subject of the photos? Or indeed if the subject never knew anything of the photos?
These curious issues came under the flashlight in Sieberer v Apple Retail. One further twist that offence was taken not at the act of photography, but at the attitude of the employee for whose apparent benefit the photos were taken.
Once again, the range of reasonable responses test came into play. At the disciplinary hearing, Mr Sieberer acknowledged that he probably ought not to have taken the photos, and explained that he had in the meantime read up in detail upon Apple’s policies. However, his contrition was not enough to sway the disciplinary officer, who focused upon “lack of respect for Apple’s principles of business conduct” and “lack of understanding of Apple’s core values and culture”, and indeed “violating another employee”. He was dismissed for gross misconduct, and his appeal failed.
The judge found that the dismissal was based upon the disciplinary officer finding Mr Sieberer guilty of sexual harassment and considering this to be gross misconduct. However, it did not follow that instant dismissal was necessarily justified. Indeed, when it was then denied in oral evidence that the dismissal was due to harassment, this undermined any argument that there were reasonable grounds for dismissal at the time. The actual impact (or lack of actual impact) of the photos was not considered.
This all served to take dismissal out of the range of reasonable responses. It was determined to have been unfair. However laudable Apple’s “respect” policy may have been, it was too vague to meet the ACAS requirement for clarity. In deciding that any contributory fault element should be only 10%, not the 100% that Apple had sought, the judge observed that “this is a world in which there are cameras in all sorts of locations”, and that the photos were neither intrusive nor sexual.
There is always a danger that HR and disciplinary officers may find themselves sidetracked, albeit with the best of intentions, where their aim to uphold broad general policy comes up against specific and unusual facts. As is often the case, external advice may save a great deal of time and resources, and indeed embarrassment.
Are you faced with a disciplinary scenario involving an offbeat background, whichever side of the desk you occupy? Is there something you should know? We can help. Contact David Cooper on 0121 325 5402 or via dmc@coxcooper.co.uk .
Tagged as: contributory fault, harassment, range of reasonable responses, reasonable grounds, sexual harassment, Unfair dismissal
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