I am a HR Manager and have become aware that staff are picking on a male colleague for being effeminate. This was witnessed by the employees’ line manager, who has spoken informally to the perpetrators, however, there has been no improvement. How do I handle it?"


Sharon McArdle, Tughans Solicitors, Belfast, writes:


Depending on what is actually taking place, the conduct of the staff in question could be viewed as harassment on the grounds of sexual orientation. Readers will be aware that harassment on the grounds of sexual orientation in employment is prohibited by the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006. The Regulations prohibit less favourable treatment because of sexual orientation for people who are homosexual, bisexual and heterosexual. However it also covers perceived sexual orientation, even if incorrect assumptions are made about a person’s sexual orientation and protects people who are associated with others of a particular sexual orientation.

In English v Thomas Sanderson Limited 2008 EWCA Civ 1421 the Court of Appeal held, by a majority, that "homophobic banter" directed at an employee could be harassment under the Employment Equality (Sexual Orientation) Regulations 2003, even where the victim was not gay; his "tormentors" did not believe him to be gay; and he knew that his tormentors did not believe him to be gay.

http://www.bailii.org/ew/cases/EWCA/Civ/2008/1421.html

Employer can be found vicariously liable for harassment by their employees under the Regulations. It is in the interests of employers and employees to treat all employees with dignity. Further, employers in the public sector have a duty under Section 75 of the Northern Ireland Act 1998, when carrying out their functions, to have due regard to the need to promote equality of opportunity between persons of different sexual orientation.

The employee in question may well raise a grievance. If so, this should be dealt with under the Labour Relations Agency’s new Code of Practice, if the acts complained of and the grievance take place after 3rd April 2011. You may have a separate bullying and harassment policy and if so the complaint could be dealt with under that policy, as long as the policy provides no less protection for the employee bringing the grievance.

The new Code places a much greater emphasis on resolving grievances informally and provides that “in the first instance and where appropriate, aim to resolve grievances informally with line managers”. If this is not effective, or if the employee, for example, feels too aggrieved or intimidated to deal with the matter informally, then the formal route may be taken.

As with the old Code, the employee should be invited to a meeting to discuss the grievance, and be informed of the right to be accompanied. The new Code provides that the employee and their companion should take reasonable steps to attend. An important change from the old procedures is that now, the employee should tell the employer how they think their grievance can be resolved.

Following the meeting, the employer should investigate the grievance. It is important in investigating any grievance that confidentiality is maintained. The employer should then decide what action, if any to take and give the employee the decision with a full explanation of how the decision was reached. The employee should be allowed a right of appeal. If an employer unreasonably fails to follow the Code, compensation may be increased by up to 50% in successful proceedings.

Whether or not the employee brings a grievance, you should look at whether an investigation should be commenced in relation to the behaviour of these employees. You say an informal chat did not do anything to improve the situation and this could be symptomatic of a wider disciplinary issue. Also, under the new Code of Practice, it is no longer necessary for the employee to have first raised a grievance in writing and waited 28 days before presenting a Tribunal claim. Dealing with the matter at an earlier stage could allow the employer the chance to carry out an investigation before proceedings are brought.

If an investigation warrants disciplinary proceedings, note that the Statutory Disciplinary and Dismissal Procedures are still in force and there has been no change to these procedures. It would be important in carrying out this investigation that all persons interviewed are told that the investigation is to remain confidential.

If the outcome of an investigation warrants disciplinary proceedings and an allegations is subsequently upheld, it may be that morale in the workplace is adversely affected. It could be the case that the perpetrators feel that they have been punished for simply having banter at work and that the employee “can’t take a joke”. Follow up work might be needed to improve employee relations.

Equality training for the entire department, if possible, could be carried out to educate the workforce about differences. This could cover other areas such as race, religion etc. and would mean that individuals are not singled out in front of the rest of the work force. It is also worthwhile to provide managers with specific equality training. This could allow the employer the opportunity to argue in future proceedings, if instigated, that they have done all that could be in the circumstances to avoid harassment taking place.

On an individual level, you could consider offering mediation. Mediation is a voluntary process where the mediator helps two or more people in dispute attempt to reach an agreement. A mediator can be provided by the Labour Relations Agency, or a private mediator [e.g. Anna Beggan of Tughans! - ed.] can be hired. Any agreement reached is developed by those in dispute and not the mediator. The mediator is not there to judge, to say one person is right and the other wrong, or to tell those involved in the mediation what they should do. The mediator is there to assist the parties in resolving the issue in dispute and to help rebuild the relationship once the formal grievance has been resolved. Mediation may not be worthwhile if, for example, the parties will not talk to each other or if legal proceedings have been instigated.

It is worthwhile dealing with this matter at an early stage, whether or not a grievance is issued, to avoid the matter becoming more serious and investigate potential disciplinary issues. Also, effort taken at an early stage could help in the defence of Industrial Tribunal proceedings which could be brought later.