Secret Santa and harassment: when banter backfires

Ah, December! The season of goodwill, Secret Santa, and questionable gift choices. Nothing says festive cheer like a mug that reveals male anatomy when filled with hot water, right? Well, as one recent Employment Tribunal case Cochrane v Neerock Ltd t/a Woodheads shows, what starts as ‘banter’ can quickly turn into a legal headache.

Facts

Barry Cochrane joined the company as a health and safety specialist on 11 December 2023. The health and safety group used Gmail to communicate, and he was added to it on 13 December.

He did not attend a meeting which took place on 12 December where members of the team exchanged Secret Santa gifts. The senior health and safety manager (Mr Orton) was given a wrapped present in the shape of a mug which he opened at home. 

The mug was blank. However, after he filled it with hot water it revealed a pair of testicles wrapped in a bow tie, with the words “I LOVE TEA BAGGING” underneath.

He'd promised to show the team what his gift was, so he uploaded a photograph of the mug to the team chat, with the picture and slogan clearly visible, and wrote “I think I need to have a word with Santa!” The team responded with emojis and comments speculating about who had bought the gift. A colleague said, “just checked and thankfully Barry isn’t on here yet is he!” and another responded “not yet”. Mr Cochrane was then added. The colleague who added him to the account didn't realise that he would be able to see any previous messages and assumed Gmail worked liked WhatsApp. 

Mr Cochrane didn't read the messages for a week. When he discovered them he became upset, packed up his belongings and left the office. He said that he was leaving because of the build-up of a number of issues and because he had been singled out on the group chat.

He set out his reasons for resigning in an email and said he had been humiliated by the messages. The following day he sent a further email accusing the team of naming him “for cheap laughs” and complaining that no-one had stepped in to stop the inappropriate content. He asked to be “compensated appropriately” and suggested six months' pay as a “starting point”.

Mr Cochrane brought a claim of sexual harassment.

The law

A person harasses another person if they engage in unwanted conduct related to a protected characteristic, and the conduct has the purpose or effect of:

• Violating their dignity, or
• Creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

Sexual harassment is conduct of a sexual nature that has the same purpose or effect. 

A tribunal must take in consideration the perception of the victim, the circumstances of the case and whether it is reasonable for that conduct to have that effect.

Tribunal reasoning and decision

The tribunal did not find Mr Cochrane to be a credible witness for the following reasons:

• He made a number of unevidenced assertions about being tricked into signing his contract of employment
• The reasons he gave for resigning were 'unclear and variable’ and were not purely because of what he had read on the Gmail thread. He'd accepted under cross examination that the picture of the mug was “a laugh” and said he had resigned because his employer had treated him badly in a number of ways in the week he'd worked there
• He'd make allegations about what had been discussed at the meeting where the Secret Santa presents had been given out, despite the fact that he wasn't at that meeting and had sought ‘to find in the smallest detail a motivation on the part of the respondent's managers which did not exist’; and
• Perhaps most damning of all, within a day of resigning he's asked for six months' salary which suggested that he'd been looking to obtain a financial outcome by resigning.

The tribunal found that the picture of the mug and the words used did have a sexual aspect to them. But the conduct was not unwanted by Mr Cochrane because i) it was not directed at him and the person who added him didn't realise he would be able to read the chat history; and ii) Mr Cochrane had described the picture as a laugh. It said that his reaction was disproportionate given he was not involved in the exchange, and it was ‘plainly not directed at him’. 

It then considered whether the conduct had the purpose or effect of violating his dignity or creating an intimidating etc environment for him. It concluded it did not have that purpose - the comments had all been made before Mr Cochrane joined the team chat. Nor did the conduct have that effect. The tribunal found that his outrage had been ‘confected, with litigation in mind’. 

Lessons for employers

The tribunal did not believe Mr Cochrane's evidence. But that's not to say that a tribunal faced with a credible witness would have rejected a similar claim. Not everyone seeing an image of a man's genitalia at work will see it as a laugh, even in the context of a Secret Santa. And if they are offended and it's reasonable for them to react that way, a tribunal will rule in their favour.

In the same way that many HR teams now warn their staff about how to behave at Xmas parties, it may be sensible to add Secret Santa to the naughty list. Many Secret Santas are anything but secret and it often doesn't need a detective to figure out who has purchased the gift. 

Remind staff wishing to gift presents to each other that it's safer to produce something bland and inoffensive rather than go for humorous which is highly subjective. It may drain any joy out of the experience, but nothing kills the Christmas spirit like a grievance.  

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