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The Scenario

There is a large group of us at work who mingle socially. Generally every Friday we go to a bar after work, sometimes we meet up on weekends, go climbing etc. During this time we joke around, sometimes talk about our week's work, have a bit of a grumble. It appears, however, that somebody in our social group has been writing down all the juicy things we've been saying and taking them to senior management.

We learnt this on Monday, just as the first member of our group was hauled in to see HR. Since then several people have been told to see HR and given various forms of discipline.

Sample remarks have been things like:

  • I'm quite cross that just as I found the perfect researcher she's gone and got herself pregnant [discrimination]
  • It'd be nice if [Muslim colleagues] could put a recurring meeting in their calendars for prayer so that I can schedule properly [discrimination]

There has also been complaints of swearing which I would hope would not be taken too seriously.

My question is:

  • None of us were in uniform with anything to tie us to the company
  • This was not written in a public space a la Facebook/Twitter cases
  • This was not in work time or in work premises

Can HR actually discipline their employees in the United Kingdom for something they have said in a bar or club?

It's probably worth noting that I have not been invited up to HR yet but it's likely I've at the very least dropped a few naughty words here and there.

closed as off-topic by Telastyn, mcknz, gnat, Lilienthal, Jane S Oct 13 '15 at 22:33

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  • 15
    I'd love an explanation how these comments are actually discrimination. Mentioning someone's gender or religion isn't discrimination. Was anything said that someone wouldn't want to hire female researchers? Isn't the second one expressing that he or she wishes to accommodate people taking their religion serious? – gnasher729 Oct 13 '15 at 15:22
  • 9
    Someone revealed to a colleague that they have attitudes of being annoyed with other colleagues as a result of the reproductive or religious choices of those other colleagues, and you think that because the revelation didn't happen at work, the attitudes will be of no interest to HR? Think again. Worry less about what you say and more about how you feel and act. It's not ok to be disrespectful, and if you don't want consequences for it then take greater care who you do it in front of. – Kate Gregory Oct 13 '15 at 15:23
  • 8
    I imagine, knowing the people who made the comments, it isn't actually that they are criticizing the fact that Researcher A gave birth or Consultant B is Muslim - more bemoaning the temporary loss of a great researcher and wishing that the consultant was a bit more organised. There have been plenty of other grumbles when a colleague goes on sabbatical or leaves for another company and these have not been picked up on. Similarly when Consultant X only does a half day on a Friday and doesn't block out his calendar accordingly. Should we always be watching our comments among "friends"? – anonymous_George Oct 13 '15 at 15:29
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    I cannot cite anything here, hence not posted as an answer, but I have in the past received training as a manager on Discrimination in the Workplace, and in that training we were taught that if an out-of-hours event happens as a result of the workplace then it is treated as the workplace and in law discrimination is handled, investigated and dealt with as if it happened within the workplace, Since you are meeting a group of people that you only meet because you met in work and work together, this may be seen as a workplace event- hence the investigations. I am UK based. – Marv Mills Oct 13 '15 at 15:30
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    I would be offended if I knew you were talking and thinking about me like that. Yes, it is sexist to assume the woman who is pregnant won't be back after her leave. Just ask the Muslims yourself when their prayers start. I wouldn't want to work with you. You can't say anything like that around coworkers no matter what you think. – Kerry Oct 14 '15 at 4:42
22

HR's argument

Often in staff handbooks there is something saying that an employee will not bring the company into disrepute. HR will likely say that the things that were said fall into this category. This could be labelled as misconduct.

Your argument

The UK is a country of free speech and what is said in a bar is not usually taken seriously, i.e. the staff handbook has little/no weight here. Moreover, as said in your question, there is nothing to indicate your place of employment, therefore you were not bringing he company into disrepute.

Edit

This article from Crunch outlines common mistakes in disciplinary hearings, saying it is a common error to rely on the account of just one person (cited with the caveat that this is not legal advice, nor is it meant to be legally authoritative and additionally does not cover the public spaces aspect of the OP's question)

What to do if you are called into see HR

HR is a humourless beast - if they give you a slap on the wrist, just accept it and be careful what you say in public in the future.

If they try anything more serious, contact a lawyer.

  • 6
    "The UK is a country of free speech" No, it isn't. Both the OP's examples could be interpreted as contravening the Public Order Act, 1986 (though admittedly the police would be unlikely to act only on a one-off instance of such remarks). It is a defence against "abusive or insulting words" that they were used in a dwelling, (the priniciple that "An Englishman's home is his castle") but a public bar is not a "dwelling". – alephzero Oct 13 '15 at 18:38
  • @alephzero: public order offences are intentionally drawn quite wide, but even so I think it's a massive stretch to interpret what the questioner wrote in that way. But those transcriptions don't convey tone (which can be part of threatening/harrassing/abusive behaviour even if the words taken literally are inoffensive), might not be verbatim, and might not be the worst cases HR is considering... – Steve Jessop Oct 13 '15 at 19:29
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    @SteveJessop I agree, but on a forum where the majority of members seem to be from the USA, "a country of free speech" might give a very wrong impression of the UK. People have gone to jail in the UK for rants on public transport, or making posts on social media, which (by my understanding of US free speech laws) would be perfectly legal in America. – alephzero Oct 13 '15 at 21:26
  • @alephzero: It's true that article 10 of ECHR is not weighed so heavily against other interests as the US weighs the 1st Amendment. But let's not get carried away, who has been jailed for posts on social media (that weren't related to other crimes, I mean)? Paul Chambers was a famous case, he wasn't sentenced to imprisonment and in the end he won his appeal. He was arrested, so I suppose he was "jailed". At least clocks are still legal here ;-) I think in either country you can be arrested for the supposedly threatening manner of delivering your speech rather than its content. – Steve Jessop Oct 13 '15 at 22:46
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    Saying either of the quotes in the original post would pose 0 risk of standing up to a prosecution under the Public Order Act, or an employment tribunal for bringing the company into disrepute. Even though we aren't as free to speak as in the USA, neither of those things are discriminatory. One is stating that it's a shame they won't be working with the colleague for a period of time (equivalent to 'I just found a good... And he's taken a month off to go skiing!'), and the other is a discussion of good calendar practice. Mentioning groups often the victim of discrimination =/= discrimination. – Jon Story Oct 13 '15 at 23:45
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Yes, HR can penalize you for something you said in a bar during your free time. Imagine that you are in a bar discussing confidential information about the company, or personal information about an employee. Or maybe you are conspiring against some other employee. These are clear offenses that will get you in trouble with HR (or worse), regardless of where you were when the discussions took place.

Complaining and ranting about your work in a bar doesn't usually rise to that level. The sample remarks you provided certainly seem harmless to me. But it's pretty easy to slip into a grey area when you are blowing off steam in a bar, and that's probably what HR is concerned about.

Whatever happens, you need to reduce the size of your group to just a few trusted friends.

  • 1
    Fair enough - I realize that in the examples given it'd be a black and white case. Also yeah - severe whittling down of our social group needed. – anonymous_George Oct 13 '15 at 16:09
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    I tend to have no "friends" whom I know from work, I keep the categories entirely separate. This was only awkward one time when I was in the hospital and people from work visited, or brought food to my home afterward. I don't keep my home or attire there "suitable for work", as I suspect most people do not. Another time, a former co-worker become friend urged me to attend the funeral of a family member of my supervisor. I declined. I felt that it was not my affair, as I was not family or a friend of my supervisor. People do such things a lot though and I do not understand why. – user37746 Oct 13 '15 at 18:28
  • I doubt unless it was grossly damaging and went vial on twitter that in the UK you could sack some one for a reported he said she said incident – Pepone Oct 13 '15 at 22:29
  • @nocomprende We are mostly university friends who ended up working in the same place. I am not willing to drop friends just because I've started working with them. – anonymous_George Oct 14 '15 at 9:16
  • @anonymous_George: so change workplaces. Otherwise, you have a situation where conflicts of interest between them can constantly arise. Which is more important to you? One day, it will come down to that. – user37746 Oct 14 '15 at 13:52
9

As Mohair says, there are several grounds on which an employer can in principle discipline you for something said in the pub: there is no general sanctuary offered by licensed premises! Furthermore there are rules whose details I don't know, about when a social event to which colleagues are generally invited can be considered a work-related event and therefore directly subject to HR scrutiny.

Relevant to this case, though, HR might be concerned about a couple of things, and I'm bearing in mind that what you've quoted might not be the worst of what was reported:

  • That whoever was taking down the notes was alarmed/distressed/harassed by what you were saying: perhaps they are a pregnant Muslim themself, they are considering becoming one, their loved ones are, or they are claiming that your antipathy was so palpable as to disturb them. If so then the fact you've distressed them outside of the office doesn't automatically make it none of HR's business that you're distressing your colleague. It's not automatically their business even if you really have (unintentionally) distressed a colleague, though. So it's not at all clear from the limited evidence (a) whether this has happened, (b) whether HR's informant has claimed this happened, and (c) whether it's appropriate for HR to be involved if it has. But bullying of colleagues outside the workplace, or even unintentional distress caused in post-work social events, is a potential legitimate concern for HR. So this doesn't constitute a legal opinion that you can't appeal their decision to take action, merely that I don't believe there's any absolute bar on them taking action where bullying or other harm is suspected, and that this might at least be claimed based on what you've said.

  • That there's a group of people who go out after work to complain behind their colleagues' backs about how annoying it is that those colleagues happen to be pregnant women, Muslims, or members of other groups subject to relatively high risk of discrimination. I don't say you have any intent to discriminate or that you actually have discriminated, but you can't really bandy about someone's legally-protected characteristics as a criticism of them even in jest. Regardless of where you are when you put about this (mildly) negative view of pregnancy, your group's shared views of pregnancy as expressed in these remarks will travel with you back to the office, and that's why HR has to care at least a bit.

I sort of think the first example does this: "her pregnancy makes me angry" is a direct (even though joking) criticism of a protected characteristic. The second one might in the right context be a perfectly constructive suggestion, and so in the absence of context looks all right to me as far as it's written. But I observe that there are different ways of saying "it'd be nice", and since we're both Brits and not strangers to sarcasm, I think we know that it can range from a completely sincere statement of mild preference, to a passive-aggressive rebuke, to outright mockery. I am not in HR and neither do I adjudicate this stuff, so I'm certainly not saying they're right (or wrong) in these cases. I'm just saying this is the light in which you should consider what you're saying when you're in the pub with colleagues after work. Your opinions of them relate to the workplace regardless of being expressed outside it.

And sure, this can all get very ticky-tacky with offence found where none was intended or taken. But that's why there's laws about it, because the UK considers even unintended issues of this kind to be genuine and serious problems. So you may have to apologise and move on.

Public swearing is "interesting" in English law. There was a time when it would pretty much automatically be considered intentionally offensive and hence a public order offence if a copper takes a dislike to it. Your employer of course can take an interest in the possibility that a group of employees is out on the town threatening Her Majesty's Peace and the very basis of civilisation as we know it.

But there was a case in the High Court in 2011 where Justice Bean ruled that the audience to the swearing (police officers and a group of youths being spot-searched for drugs) could not possibly be genuinely offended by the use of what I assume to be the f-word as general punctuation ("---- this" ... "you won't find ---- all" ... "I've already ------- told you"). The conviction was overturned, but it's really your call whether you want to try to defend your language in the face of HR telling you not to use it in the presence of colleagues who don't like it.

0

It depends on what was said, however, unless you were revealing deep company secrets and mocking the president, I highly doubt anything will happen.

Just to give an example, once I saw the CEO of my company at a bar talking to someone I thought I knew. Once I went up there, I realized it wasn't the same person and made a complete idiot of myself. Nothing ever happened after that.

Now that doesn't mean you should go all out. A lot of people get fired over what they say on social media, so yes you can get into trouble. Just don't go overboard with making a statement and take it easy.

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