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Damian Warbuton: "Breast flash Police Chief keeps job"

Thursday 23 February 2017

Acas Senior Adviser Damian Warbuton discusses the grey area between people's work and personal lives.

Damian Warburton Damian Warburton

Damian Warburton joined Acas in 1996, after a career in various Central Government departments up and down the country. He initially worked as an individual conciliator settling claims across the full range of Employment Tribunal jurisdictions before moving on to advisory work in 2003.

Since then he has worked with a range of public and private sector organisations across the North West, working with both staff and management to provide advice, training and support to improve employment relations and business performance.

Many of you will remember the recent headline involving an altercation between two police officers. Without going into the details, the central lesson from the case seems pretty obvious - a combination of alcohol, some strongly held views and a few unwise words or deeds can cause a whole lot of problems in the workplace.

But it is clear that this case also asks three very important questions about the often grey area between work and life and how we should and shouldn't react when someone seems to go too far:

  1. If an incident happens outside the workplace, is it anything to do with the employer?
  2. Does it matter who complains?
  3. Is suspension always the right response?

Is it any of the employer's business?

Although the incident involving Assistant Chief Rebekah Sutcliffe took place outside work, in a Manchester hotel, it seems likely that the answer may still be 'yes'. Employers are vicariously liable for the actions of their employees "during the course of their employment". In an earlier case from 1999 [Chief Constable of the Lincolnshire Police -v- Stubbs [1999] IRLR 81], the Employment Appeal Tribunal held that social gatherings can be covered by this vicarious liability. So don't think 'I'm outside work, so anything goes'.

Does it matter who makes a complaint?

In this case, the target of the abuse did not make a complaint but another colleague who overheard Ms Sutcliffe's comments did. Under the Equality Act 2010, it is sufficient that Ms Sutcliffe's comments related to a protected characteristic (in this case sex) and that the colleague who heard them reasonably viewed them as creating "an intimidating, hostile, degrading, humiliating or offensive environment". The fact that the comments weren't directed at the complainant is irrelevant.

What's the problem with suspension?

Apart from the cost of suspension on full pay, there is a very engrained employment law myth that simply because a case might be gross misconduct employers need to suspend. This view was debunked by Lord Justice Elias a few years ago [Crawford v Suffolk Mental Health Partnership NHS Trust - CA Feb 2012]. Guidance on when to suspend can be found in our guide pdf icon Conducting workplace investigations [378kb] 

One final word of caution. Although you may be trying to erase the memory of the office party from your mind, there is a three month window between an incident taking place and making a complaint. Workplaces should provide clear guidelines about what is and what is not acceptable behaviour and, above all, create a culture of based on respect and dignity for all. 

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