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Don't let a joke in the workplace land you in an employment tribunal

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Employment law update 2018: employment tribunal

We all enjoy a bit of fun on April Fool’s Day but you need to be careful that it doesn’t land you in trouble with your employer. Just because it’s a day celebrated by all tricksters, it doesn’t mean that the normal rules relating to your behaviour at work don’t apply. 

Certain jokes could result in a colleague reacting badly and there is a risk that the prank could be deemed as discrimination and harassment if it creates a degrading, hostile or intimidating environment for other employees based on a ‘protected characteristic’ such as age, sex, disability, race, religion, sexual orientation, gender reassignment, marriage or pregnancy.

In the case of AM v GF and another, joking was common in the workplace. On one occasion, a female employee complained of an incident where a male colleague “dropped his trousers, bent over with his hands on his knees, and was shaking his bottom”. The employment tribunal held that the colleague’s actions were unwanted and of a sexual nature. The tribunal upheld the claim for sexual harassment.

Similarly, employers won’t be able to fain ignorance in respect of April Fool’s pranks as they can be held vicariously liable for an employee’s behaviour if the joke took place in the course of their employment. In the case of Oteomewo v Carphone Warehouse Ltd, the employment tribunal found Carphone Warehouse liable for sexual orientation discrimination. In this case, two employees changed their manager’s Facebook status to state that he had “finally come out of the closet” and was “gay and proud”. The employees knew that the manager was not gay. However, the manager was successful in bringing a claim for sexual orientation discrimination against the company on the basis that the employee’s behaviour had been in the course of employment.

Remember, if a prank causes someone to feel alienated or bullied it could, at least, result in a grievance being raised against you; you could be found in breach of the company internal policies and could find yourself facing disciplinary action. Similarly, and as a caution to employers, an employee’s joke could lead to an employment tribunal claim being brought against you.

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