Right, that should be enough to scupper UKIP’s chances of bringing the UK out of Europe, so now onto the actual facts.
The German Labour Court in Erfurt last week ordered the reinstatement of a garage mechanic dismissed for fondling the cleaner’s breasts. Cut and dried dismissal material, one might think, especially accompanied by his immortally dismal explanation to her that “these look like fun“.
There was, however, some substantial mitigation – the employee had a blameless sixteen year record with the garage, apologised as soon as it became clear that his idea of fun was not shared by the cleaner, paid her a sum of money in compensation for her upset and promised never to do it again.
The Erfurt court took the view that while repeat offences should clearly lead to dismissal, “sexual harassment in the workplace must not lead to the immediate termination of the offender“. The employee should have received the German equivalent of a final written warning, said the court – in the particular circumstances of this case, dismissal for a one-off fondling was a step too far.
Of course, there is much unknown about this case which could lead to a decision that dismissal was not necessary – how unprompted was the apology, how much money was paid, on what terms it was solicited or accepted, the cleaner’s view on further steps, how vigorous and/or extended was the grope, etc. It must have been a fun afternoon in the Labour Court public gallery that day.
However, there is also little here which points to dismissal being so harsh as to be not possible – after all, this was an entirely deliberate sexual assault, not something alleged to be accidental or driven by illness or any genuine belief on the mechanic’s part that his attentions would be welcome. The idea that you can head off a dismissal for sexual harassment by a pre-emptive cash payment and a promise not to do it again is a very unappealing one.
The Daily Mail headline last week, “When it’s OK to grope at work”, is therefore misleading. This case does not legitimise groping the breasts of a colleague even once, even if you are prepared to pay something for the privilege and even if you do genuinely think that they look like fun. At best, this is a case on its own relatively unique facts. It will not form safe authority even in Germany, except perhaps for the proposition that an immediate and automatic termination without prior consideration of all the relevant facts may be open to challenge.
Moreover, it is very hard to see an English Employment Tribunal operating the “range of reasonable responses” test ever reaching the same conclusion. Even if it took the view that the mechanic was acting out of character as a one-off with no intent to cause distress and that he was genuinely mortified by his actions, it is still very likely that the employer’s right to dismiss would be upheld. I suppose you could envisage a case where the employer did not even pause to consider mitigation and so lost on those technical grounds, but not much more. And while there is no absolute rule that an employee’s misconduct will be a bar to his reinstatement being ordered, the likelihood of such an order in this situation seems less than negligible.