For August 2022, we have asked the employment team at Tughans’ Solicitors to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “how do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal, from time to time, with the less commonplace disputes at work; issues that may, if handled incorrectly, lead to claims of discrimination, constructive dismissal or some other serious difficulty.

 This month’s problem concerns:

“An employee has made inappropriate comments during the course of their employment while engaging in a remote video call on Microsoft Teams. The comments have caused upset and discomfort for the subject of the comments and wider workforce. How should I handle this?”

Video calls are essentially a gateway to employees’ personal lives, as the majority of calls are conducted from home (which ordinarily would have remained separate and private before the ‘working from home’ culture). This degree of accessibility creates potential for inappropriate commentary.

While participating in a remote call, you may see articles which allude to political or religious affiliation, be introduced to a colleague’s partner or observe evidence of a colleague’s health issue that you would not otherwise have been aware of if sitting at your desk in the office.

You have not described the nature of the comments, but employees may be more likely to make an inappropriate comment during a virtual meeting, due to the more casual and relaxed atmosphere which could create a perceived unlikelihood of repercussions and blur the reality of the working environment and the obligations the employment relationship brings. In the most severe of circumstances, inappropriate comments from employees could result in the organisation facing claims of discrimination.

The context and nature of inappropriate comments can vary, although the effect they may have remains consistent, in that they have the potential to create intense feelings of upset and discomfort. You have said that the recipient of the comments is upset but have not indicated if they have raised a formal grievance.

I suggest you look at the nature and context of the comments:

• Do the circumstances suggest that the matter could be dealt with informally?
• Will the incident likely result in a grievance from the employee: have they indicted how they wish the matter is dealt with?
• Were the comments serious in nature?

As part of your enquiries, you should consider if the comments are discriminatory in nature. A comment could potentially be classed as discriminatory if it is made in relation to one of the nine protected characteristics as outlined below:

1. Disability
2. Race
3. Religious Belief
4. Age
5. Marital Status
6. Gender
7. Pregnancy/Maternity
8. Gender Reassigment

However, if the comments do not neatly fall under one of above protected characteristics, this does not mean you do not have to investigate the employee’s concerns. You should still liaise with the employee who has raised the matter with you and ascertain whether they wish to raise a formal grievance.  Even if they do not, subject to the nature of the comments, you may still wish to investigate further.

Once the circumstances have been fully investigated, you will be in a better position to decide how best to deal with the incident.  Depending on the circumstances, you may have grounds for commencing a disciplinary process, and possibly consider dismissal on the grounds of gross misconduct.

As always, you should consult your own policies and procedures. As far as possible, different personnel should be involved in investigating the employee’s complaint and undertaking any resulting disciplinary procedure. As you are aware, when dismissing an employee on grounds of gross misconduct, the statutory dismissal procedure must be followed as outlined below:

1. The employer must provide the employee with a written statement of what they are alleged to have done wrong.
2. The employer must invite the employee to a meeting to discuss the allegation(s).
3. The employer must inform the employee of their right to appeal any decision.

Despite the severity of the comments which may have led to disciplinary action, failure to adhere to the above procedure, could result in the dismissed employee bringing a claim of unfair dismissal against the organisation.

The employee who raised the concern should be supported throughout.