A Lancashire employment tribunal has made headlines after a male pallbearer was dismissed for inappropriate behaviour.
Mike Hartley was dismissed from his role at D Hollowell & Sons, approximately 18 months after being promoted to Client Liaison and HR Manager. His claim for unfair dismissal made headlines thanks to Mr Hartley’s use of ‘pet names’ in the workplace.The reality is far more complex.
Josie Broadstock, HR Consultant at Altum HR, denounced the “clickbait headlines” surrounding the case. Among them, the Daily Mail ran with the headline: “Calling women at work ‘love’, ‘hun’ or ‘babes’ is demeaning and ‘infantilising’, but it’s acceptable to use ‘mate’ or ‘lad’ for male colleagues, judge rules at tribunal”.
Further investigation reveals that Mr Hartley made several inappropriate comments and gestures, as cited by female colleagues:
- Adding a female employee as a friend on Facebook shortly after recruiting her
- Offering massages to female staff when they appeared distressed
- Making comments about “looking up [your] skirt”
- Sending Whatsapp messages perceived as flirtatious.
Mr Hartley took legal action against the funeral parlour, saying he would have been treated differently had he been female. He also alleged that his colleagues resented him after his quick promotion.
The judges ruled Mr Hartley’s unfair dismissal claim successful, but dismissed his sex discrimination claim. He also received no compensation on the basis of Polkey vs A and E Dayton Services Ltd (1987) HL.
What is the Polkey deduction?
In usual unfair dismissal cases, the successful claimant is awarded monetary compensation. The Polkey deduction is a reduction in the amount of compensation awarded.
In some cases, like this one, 100 per cent of the compensation is deducted. This reflects the fact that the dismissal would have been fair in any event. In this case, the judges ruled that a female employee would have been treated the same.
Likewise, the judge agreed that D Hollowell & Son’s dismissal was “procedurally unfair” and that there were inadequacies in the investigation.
One viewpoint would be that it was a win-win for both parties, or indeed, a lose-lose. Mr Hartley has the satisfaction that his unfair dismissal claim was successful, while D Hollowell & Sons have the comfort of no monetary loss. Conversely, Mr Hartley is no better off financially, while D Hollowell & Sons may now have to review their internal processes.
What this means for UK firms
The case, outlined in a lengthy 32-page document, described Mr Hartley’s use of ‘pet names’ such as ‘sweet’, ‘love’, ‘chick’, ‘honey’ and ‘babes’. Mr Hartley also argued that he would call men ‘mate’ or ‘lad’, but the judge deemed these nicknames, rather than demeaning terms.
This calls for a holistic review of workplace conduct, adds Josie. “Terms such as ‘love’ and ‘hun’ are common in the Northwest,for example. This case ignores the fact that women also use these names, so an employee cannot be dismissed for this in isolation.
“In all cases, we need to consider things like tone, situation, context, history, culture and general workplace relationships.”
The headlines surrounding this case downplay Mr Hartley’s gestures and comments toward his colleagues, instead focusing on trivial things like the use of pet names. In reality, managers and HR teams need to focus on broader employee conduct, rather than dialectical nuances.
So, what can UK firms learn from this?
- To encourage a transparent culture of openness and honesty – allowing colleagues male and female to report any bad behaviour in a safe space. This could avoid the so-called ‘witch hunt’ scenario as outlined in this case, and accusations of collusion.
- To establish boundaries between colleagues, including the use of messenger services outside of working hours. An employee was able to give evidence of suggestive language sent to her via Whatsapp.
- To determine what is and what is not ‘acceptable language’ in the workplace, making sure to consider any cultural differences.
- To continually revise investigatory procedures.Despite being proven to have made several inappropriate gestures and comments, Mr Hartley still won his case. This was in part down to “flawed investigatory processes”. Firms should consult third-party help if they are not sure how to deal with these claims.
Can I use pet names at work?
While regional and cultural differences may have their own definition of what is “acceptable”, it’s important to make this clear across the workforce. In isolation, the use of pet names is not a sackable offence, however “infantilising” they may seem.
However, when coupled with inappropriate behaviour, this may be a red flag. Managers should be vigilant and encourage staff to come forward to prevent cases like this in the future.
For help reviewing your investigatory processes, contact Altum HR today.