The press coverage of England’s Euro 2012 team continues to be dominated by Rio Ferdinand’s omission from the England squad and the inclusion of his former centre-back partner John Terry. The controversy surrounds the fact that in December, Terry was charged by the Police with making racist comments to Ferdinand’s brother. Roy Hodgson, the England manager, cited “footballing reasons” for Ferdinand’s omission but many suspect that the two had to be kept apart because of their fractious relationship and Hodgson ultimately opted for Terry over Ferdinand.
Similar situations often crop up in the employment sphere but what steps can and should an employer take when one employee accuses another of an act of harassment or discrimination and either the act and/or the accusation creates such animosity between the two employees that it becomes clear they are no longer able to work together or in each other’s vicinity?
Depending on the facts of each case, the employer could face significant risks if it does not separate the employees. First there is the risk of a further act of harassment. If such a situation did arise the employer would find it more difficult to rely on the statutory harassment defence that it took “all reasonable steps” to prevent the harassment occurring if it did not at least consider separating the employees. Secondly, there is a risk of a victimisation claim arising if the accused subjects the complainant to any form of detriment. This risk is increased if the accused is a line manager of the complainant. For example a simple decision such as the refusal of a holiday request could be alleged to be a detriment arising from the complaint. There is also the more practical risk that the work of the individuals/department could be negatively affected by the ongoing tensions.
Employers may therefore prefer to move one or other of the employees to a different part of the business or assign him/her different duties. Remember that changing an employee’s duties/location may constitute a breach of contract if not agreed.
Even if there is a contractual right to make the change, any changes made to the complainant’s duties/location could give rise to a victimisation claim if that employee views such a change to be detrimental and so it may be safer to move the accused (assuming a contractual right to do so) rather than the complainant. However, if the accused is the manager, the scope for placing him/her elsewhere may be relatively limited.
In such a case, or if the alleged act of harassment is sufficiently serious, breathing space may be gained by suspending one party whilst the matter is investigated. This carries its own risks. Which do you suspend? The complainant or the alleged perpetrator, who is clearly innocent until proven guilty and whose reputation may be seriously damaged on a “no smoke without fire” basis even if totally “acquitted” after the suspension? In addition, a manager may be less dispensable day-to-day than the junior. There is no perfect answer, but the Tribunal will not criticise an employer making that decision so long as it is seen to consider all the relevant facts first. If challenged for its thinking here, it will need something more than “footballing reasons”!
As the Neil Sadaka song goes, breaking up is hard to do. From a legal sense it is certainly not without its risks but sometimes the risks of taking no action could be far graver.