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Is Having Sex in the Workplace Gross Misconduct?

In a recent case, the Employment Appeals Tribunal had to decide the knotty problem of whether having sex in the workplace was gross misconduct.  

The Judge hearing the original case had decided that it wasn’t. He reached the conclusion that the employer’s decision to sack the two employees caught in flagrante delicto was unreasonable, and the employees won their claims for unfair dismissal.  
The employer appealed this rather surprising outcome. The Employment Appeals Tribunal reversed the decision and held that the dismissals were fair after all. A key point in their reasoning was that not only had the employees been having sex, but they had also been making rude comments about their boss while doing so.
So the moral of the story seems to be that you might get away with having sex at work (after hours, of course, not when you’re supposed to be working), but if you do it on the boss’s desk or are otherwise disrespectful to your employer, then you’re really in trouble. Perhaps the best thing to do would be to sleep with the boss rather than anyone else.
More seriously, there are a few cautionary tales emerging from this case that everyone can learn from, even if you don’t happen to fancy any of your colleagues.  
The employees in this case were caught on CCTV and there was a separate audio recording on their encounter on a dictation machine. That might seem like incredibly bad luck, but in fact they should have anticipated it.

Now that nearly everyone is carrying around a mobile phone with video and audio recording, this sort of evidence is becoming more and more common in misconduct cases. The actions or conversations being recorded are not always as salacious as in this case, but the same principle applies.  You never know who’s watching or listening, so think twice before you do or say anything that you wouldn’t be happy to repeat in front of your boss.      
The original Judge was obviously fairly sympathetic to the employees, but he still slashed the damages awarded in half for “contributory fault”. Even though he found that the dismissal was unfair, he considered that the employees were partly to blame and he reduced their damages accordingly. Employment Tribunals make these reductions in all sorts of cases, and it shows that even a claimant who is technically “in the right” still needs to be seen to have acted properly. Any bad behaviour might not lose you the case, but it could come back to haunt you when the Judge decides how much money to award.  
It's relatively rare for our Employment Solicitors to be asked to advise employees who find themselves in this exact situation, but we often have cases involving risqué websites being accessed from a work computer or ill-advised emails between colleagues.

The legal rights and wrongs of these types of cases are only part of the story. It’s a brave employee who wants to pursue a case like this all the way to a public hearing, where all the details of the case will be discussed. In the case in question, the claimant applied to the tribunal to retain his anonymity. This was refused, and the details of case, and the judgment does go into rather a lot of detail; are now a matter of public record.   
At Slater and Gordon our Employments Solicitors take into account all the legal and non-legal factors in our cases. Far more often than not we use the threat of litigation, rather than litigation itself, to obtain the best results for our clients. 

Lauren Hillier is an Employment Solicitor at Slater and Gordon Lawyers.

For expert legal advice or immediate representation for an Employment Law issue, call Slater and Gordon on freephone 0161 830 9642 or contact us online.

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