UK Tribunal Overturns Dismissal For Prank At Work: A Win For Workplace Banter?

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Littler Mendelson

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With more than 1,800 labor and employment attorneys in offices around the world, Littler provides workplace solutions that are local, everywhere. Our diverse team and proprietary technology foster a culture that celebrates original thinking, delivering groundbreaking innovation that prepares employers for what’s happening today, and what’s likely to happen tomorrow
A recent decision by the Watford Employment Tribunal in Richardson v West Midlands Trains Ltd saw a train driver reinstated and awarded £40,000 after he was found to have been unfairly...
UK Employment and HR
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A recent decision by the Watford Employment Tribunal in Richardson v West Midlands Trains Ltd saw a train driver reinstated and awarded £40,000 after he was found to have been unfairly and unlawfully dismissed for performing pranks on a colleague. Given the increase in claims relating to "banter" over the past couple of years, this appears to be great news for fans of Punk'd everywhere.

But does this mean employees can dust off their whoopie cushions and begin making plans to prank their unsuspecting colleagues ahead of April Fools' Day without risk of disciplinary action up to and including dismissal?

Case Summary

The case involved two pranks made on the same colleague. Following a conversation where the colleague indicated a squeamishness about insects and spiders, the Claimant placed a tarantula's shed exoskeleton in her pigeonhole at work. The Claimant had hoped to elicit a reaction of momentary shock, followed by relief once the colleague realised it was "merely" a shed skin and not a live tarantula. The colleague was distressed and required another colleague to remove the exoskeleton.

There was a conversation between the colleague and Claimant after the first prank, where both individuals agreed that the colleague swore at the Claimant and the Claimant raised the prospect of leaving a snakeskin there on a later occasion. The Tribunal found that the Claimant had been told by the colleague not to repeat his actions, but that he considered this conversation to be "banter" so did not take it seriously or appreciate the level of the colleague's upset.

The second prank followed and, as hinted, involved placing a snakeskin in the colleague's pigeonhole. The colleague was distressed and reported it to her line manager, resulting in the subsequent dismissal of the Claimant for gross misconduct.

However, the Tribunal later found that these were "harmless, childish pranks" and therefore amounted to an unfair and wrongful dismissal.

Does that mean workplace pranks are now fair game?

... Not quite.

The Tribunal (and parties) in this case were all in agreement that the Claimant's actions were ill-judged pranks that amounted to misconduct and the Claimant accepted that his actions were inappropriate and unacceptable, causing his colleague upset. The crux of the Tribunal's decision was that the pranks did not amount to gross misconduct sufficient for dismissal.

The Tribunal did provide some helpful guidance points which may help employees and employers to assess whether a workplace prank is appropriate, or how to consider it in a grievance or disciplinary context if escalated:

  • The context of the prank is important, so employers should consider if there was any risk of harm or significant business interruption, whether the pranks were abusive or harmless, where and when they took place etc.
  • The Tribunal considered that many pranks could be considered bullying as "their purpose is to cause a degree of upset or discomfort, albeit fleeting" and therefore might constitute misconduct warranting disciplinary action. Some pranks could be serious enough to constitute gross misconduct, but not all of them would.
  • Continuing to perform pranks despite being asked to stop them may be more serious than the pranks themselves.
  • Any disciplinary decisions should be considered in line with company policies, such as what is deemed gross misconduct or misconduct.
  • Employers should bear in mind the reaction of the pranked-employee, for example how serious they found the prank, what outcome they are looking for and how they see their working relationship with the pranking-employee moving forward. In this case, the colleague wanted the pranks brought to an end, but "she did not suggest she wanted any particular sanction to ensue, that her working relationship with the Claimant had been destroyed, that she needed counselling, wished to be placed on lighter duties for a period, have some time off, or anything similar."
  • Employers should seek to understand the employee's motivations for performing the prank (such as whether it was good-humoured and not intended to upset or intimidate anyone) and their actions when discussing the appropriateness of the prank (such as admitting to the pranks and/or apologising to any affected employees).

Based on this decision, the Tribunal is clearly not banning pranks and banter at work, and having a culture where employees are able to joke with each other can be important to workplaces that see the potential benefits to relationship building, morale boosting and stress reduction. But it is clear that context is key and humour is open to interpretation. Employees should tread carefully with pranks and jokes (and we have previously created a list of tips for how to banter at work without harassing your colleagues) but employers should also be sure to avoid overreacting, even if the prank does involve exoskeletons...

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

UK Tribunal Overturns Dismissal For Prank At Work: A Win For Workplace Banter?

UK Employment and HR

Contributor

With more than 1,800 labor and employment attorneys in offices around the world, Littler provides workplace solutions that are local, everywhere. Our diverse team and proprietary technology foster a culture that celebrates original thinking, delivering groundbreaking innovation that prepares employers for what’s happening today, and what’s likely to happen tomorrow
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