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Case Law Reviewed - Employee ‘Intimidated’ by Colleagues Playing ‘Anti-British’ Songs at Work

June 01, 2022

Key Learnings

Where a complaint of bullying or harassment or sexual harassment does arise, Employers must be seen to reasonably deal with these issues on a fair and impartial basis and in line with their Bullying and Harassment Policy. Adherence to procedure is fundamental, particularly in investigating such allegations. A full and fair investigation process should contribute significantly to reducing the exposure to any potential future claim.

This Case relates to a single, non-recurring act of harassment. The Employer took a number of steps to attempt to resolve the complaint and to avoid any repetition of the conduct. They also had a Bullying and Harassment Policy in place which they adhered to. As a result, the Adjudicator was satisfied that the Respondent took such steps as are reasonably practicable in the wake of the incident, to prevent the conduct being repeated and found that the Complainant was not harassed on the grounds of religion, within the meaning of the Employment Equality Acts.


Background

The Complainant referred a complaint under the Employment Equality Acts on 28 August 2020 on the grounds of religion, claiming he was discriminated against on the basis of Religion, when ‘anti-British’ songs were played in the workplace. On the claim form he ticked ‘other’ as the area of alleged discrimination, but it is clear from the narrative written by the Complainant on the initial referral form that the complaint falls under the area of Harassment.


Summary of Complainant’s Case

The Complainant started working for the Respondent on 8 October 2018 as a production assembly operative. He submits that on 1 July 2020 he was working in the assembly area and music was being played that was controlled by one or two female operatives. He describes the music as anti-British songs; one which contained the lyrics “go home you British b*stards”. He says this song was played 2 or 3 times. The music lasted for about 2 hours. The Complainant is a protestant living in Northern Ireland and he says the music made him feel uncomfortable.

Whilst the music was being played a co-worker stopped by his desk and shouted “up the RA”, which he found particularly threatening. He was very upset by the music and the comment. As far as he was aware he was the only British Protestant working in this location. The Complainant was unable to return to work because of the incident and feels he was intimidated out of his work.

He reported the incident on 3 July 2020 to HR and it was suggested the person playing the music did not understand the significance of the music.

He made a formal complaint and on 5 September had a telephone interview with an HR manager in the UK and the Production Manager. He was told they had not found out who played the music. He was informed of the outcome of the investigation on 20 August and told that no more personal music would be played on the factory floor. He was also given an apology from the person who played the music; it was a one-line apology and did not have his name on it.

He appealed the outcome of the investigation and on 14 September 2020 had a telephone interview with the Head of HR for the region and the Chief Operations Officer. He was advised that nothing more could be done. Excuses were made that the person playing the music was young and no malice was intended. He was then asked if it was a personal issue against the person who played the music.

On 19 October 2020 he was set to return to work, but he was nervous about returning and he sent the Regional Head of HR an email saying he ‘could not work for the IRA’. He went into work but was sent to HR and was issued with a letter suspending him. He had a disciplinary hearing on 30 October 2020 and was dismissed on 4 November 2020.


Summary of Respondent’s Case

The Respondent has a multi-denominational workforce with employees of various nationalities and religious beliefs. The Respondent has a clear anti-harassment policy in place prohibiting discrimination and harassment on any discriminatory ground, including religion.

On 3 July 2020 the Complainant failed to attend for work and his absence was unauthorised. On 8 July 2020 the Complainant emailed the HR Manager requesting a meeting to discuss “a few different things going on in work from I last spoke to you”. They met on 10 July to discuss feedback following his interview for a Deputy Supervisor position, communication with his superiors, and the issue of republican songs being played on the factory floor and an alleged inappropriate comment made which the Complainant claimed was sectarian abuse. The Complainant was informed of his right to raise a formal grievance but instead he agreed to deal with matters informally by way of mediation.

In the meantime, the Respondent immediately took steps to prevent the alleged discriminatory conduct from recurring by implementing a new policy prohibiting personal music on the assembly and permitting approved radio stations only.

A mediation meeting took place on 15 July 2020 to discuss all the workplace grievances raised by the Complainant. The Complainant was informed of the steps taken in relation to the inappropriate music. The Respondent agreed to talk to the individual about the alleged comment. The individual subsequently denied making the alleged comment and there was no evidence to support this allegation. At the end of the mediation the Complainant confirmed he was happy to move on from these issues. He requested two weeks leave to “sort his head out” and it was agreed he would return to work on 6 August 2020.

The Complainant raised an issue about pay for the period from 3 July. The Respondent confirmed he would receive sick pay for one week, from 3-10 July. He was not happy with this and said he had been “punished” and “suffered a loss of earnings” due to both the “treatment of management and the sectarian abuse”.

On 28 July the Respondent wrote to the Complainant to confirm the outcome of the mediation and that the period 3-10 July would be paid in full on a discretionary basis. The period 13 July to 5 August was to remain as a mixture of annual leave and unpaid leave, as requested by the Complainant. On 29 July the Complainant invoked the formal complaints procedure alleging that his complaint regarding “sectarian and anti-British music being played on the factory floor was not handled in a satisfactory manner”. On 5 August a grievance meeting took place to discuss the issues raised in detail. At the end of the meeting the Complainant was asked about returning to work and he stated, “well it depends what the next outcome is”. The grievance concluded i) that inappropriate music was played on the work floor and the issue was initially resolved by mediation. The employee admitted to playing the music and explained it was a random playlist and there was no malicious intent. She wrote an apology. It was acknowledged that i) measures had been put in place to prevent this recurring, ii) the alleged comment was denied and there was no evidence to support the allegation, and iii) The annual leave was not reinstated as this was taken at his own request. The Respondent did agree to pay the Complainant in full, from 3-10 July and 5-21 August 2020.

On 27 August the Complainant appealed the outcome. He made his referral to the WRC on the following day. The appeal hearing took place on 14 September 2020. The Complainant said his appeal was how HR handled his original complaint and that he had to use his annual leave to cover his absence from work. It was apparent the Complainant had an agenda and was never going to accept the outcome of the appeal. Those who heard the appeal met with the Complainant on 23 September and informed him of the outcome. It was agreed that further training would be provided to the HR team in relation to complaints of anti-sectarian abuse.

Following this the Complainant sent a series of aggressive, intimidating and threatening emails to the Respondent. Following a thorough investigation, disciplinary and appeals process the Complainant was dismissed by reason of gross misconduct on 4 November 2020.

The Respondent submits they took reasonably practicable steps to prevent the harassment and, if and so far as any such treatment has occurred, to reverse the effects of it.


Findings and Conclusions

In this Case the Complainant gave details of a single act, which the Adjudicator takes as non-recurring. The Complainant’s main issue was with how the Respondent dealt with his grievance. When the Complainant raised his grievance, the Respondent attempted to resolve the issue through mediation, as evidenced by the notes of the meeting they submitted. To avoid a repetition, they stopped individuals from playing their own choice of music. When the Complainant decided he was not happy with the outcome of the mediation the Respondent invoked a formal investigation and, when the Complainant was unhappy with the outcome of the investigation, undertook an appeal. The Complainant received an apology from the instigator of the songs.

The Respondent submitted a copy of their Bullying & Harassment Policy which was in place at the time of the incident. They say they followed this policy which, together with the actions referred to above, shows they “took such steps as are reasonably practicable …… to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim's employment and, if and so far as any such treatment has occurred, to reverse its effects.”

The Adjudicator knows the Complainant was unhappy with how his complaint was taken initially and felt that the apology was not fulsome and that no action was taken against either of the individuals whose behaviour he complained of.

However, the Adjudicator was satisfied that the Respondent took such steps as are reasonably practicable in the wake of the incident, to prevent the conduct being repeated, as outlined in the Employment Equality Act, and that the Respondent was entitled to rely on that defence.   


Decision

For the reasons given above the Adjudicator found that the Complainant was not harassed on the grounds of religion within the meaning of the Employment Equality Acts.