Is having sex in the workplace gross misconduct?
The Judge hearing the original case had decided that it wasn’t. gross misconduct. He reached the conclusion that the employer’s decision to sack the two employees involved was unreasonable, and the employees won their claims for unfair dismissal.
The employer appealed this rather surprising outcome and 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 are otherwise disrespectful to your employer, then that may cause further trouble.
There are a few cautionary tales emerging from this case that everyone can learn from.
Case study learnings
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 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 judgement 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.
How can Slater and Gordon help?
Our are highly trained and have the knowledge, skills and experience to handle your case. If you’re facing legal action from your employer we’ll work closely with you every step of the way, doing everything we can to help you achieve the outcome you’re aiming for.
All information was correct at the time of publication.