Christoph Sieberer, an Austrian national, was employed by Apple Retail UK, where he became friends with another German speaker referred to as 'Thomas'. Sieberer sent two photos of a female colleague to a group chat that he and Thomas were in with two other colleagues, one of whom reported both men to a manager.
An internal investigation found that Sieberer was guilty of sexual harassment for taking and sharing the photos. He was later dismissed. However Sieberer won his tribunal claim as the judge ruled the dismissal was not a reasonable response from Apple.
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Antonio Fletcher, head of employment at Whitehead Monckton, told HR magazine that this case showed employers should have clear harassment policies, to avoid claims of unfair dismissal.
He said: “This case highlights the importance of ensuring company policy is in line with relevant legislation that deals with those legal principles. Investigations into harassment should be interpreted within the law, rather than a broad interpretation of generic company policy.”
Thomas had what the tribunal described as a “teenage-style crush” on a female colleague.
While Thomas was off sick from work, Sieberer took a picture of the food counter in the canteen; behind the counter a female employee was visible, with an office pass attached to her.
He sent it to the group chat he had with Thomas and the two other employees, Hana and Laura, with a message that said “M**, you’re welcome Thomas”.
Thomas responded to the photograph with a message that said: “Look at bae there…so cute (face emoji blowing kisses) working her ass off but still looking great” and “That’s my girl”.
On a separate occasion, Sieberer took a photo of the same female colleague, which he sent directly to Thomas in a WhatsApp message. The tribunal heard that Sieberer later deleted the photo from his phone but Thomas showed the photograph to Hana and spoke about the female employee.
Hana later discussed Thomas’ behaviour with another colleague, Grace, and they decided Hana should raise his behaviour with a manager.
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Hana discussed the incident with a manager, 'Clinton', and showed him a screenshot of her phone that showed the photograph and comments Thomas had made.
Apple subsequently pursued a disciplinary investigation into Sieberer and Thomas’ conduct. During the investigation, Clinton spoke to Hana who said Thomas frequently spoke to her about the women he had crushes on and referred to them as his “work wives”, which she said made her “deeply uncomfortable”.
Clinton then spoke to Sieberer, who admitted he had taken the photos without consent. It was decided at a disciplinary hearing that this behaviour was a breach of Apple’s workplace policies.
The policies concerned were the business conduct policy, which forbid employees to record other employees on a device without their consent, and the harassment and bullying policy, which prohibited harassment and sexual harassment of any kind.
Sieberer was dismissed and took his case to the employment tribunal. He told the tribunal that the dismissal had been unfair as the investigation conflated him taking the photos with the comments Thomas had made.
The tribunal found that Sieberer had been dismissed because Mrs Surtees, who dismissed him, thought he was guilty of sexual harassment by taking and sharing the photos simply because they were of a female colleague.
Employment judge Walker ruled Apple’s harassment policy was “vague and did not contain a clear definition of harassment”. The tribunal also found that the female employee who Sieberer took a photo of was unlikely to have known that the photo was taken, and therefore his behaviour could not have impacted her.
Walker noted the harassment policy should refer to the legal sense of harassment, including how an employer could determine whether conduct was unwanted or had the effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
The judge ruled that Apple had not responded reasonably to Sieberer’s behaviour, as there was no evidence to show anyone took offence to the photographs, and therefore the dismissal was unfair.
“This was a stupid form of engagement with Thomas’ teenage-style crush, but it was not serious misconduct,” Walker wrote in the tribunal report. “On its face, taking two photos of a colleague and sharing them with a small audience is not something that any reasonable employer would treat as grounds for dismissal.”
Compensation will be awarded at a future hearing.
Tina Chander, partner and head of employment law at Wright Hassall, explained that sexual harassment policies should be specific about what constitutes harassment.
Speaking to HR magazine, she said: "Employers need to do everything they can to prevent harassment in the workplace. This case highlights how crucial it is for employers to have clear and specific policies on sexual harassment.
“It’s essential to distinguish between harassment, bullying, banter and discrimination. All too often, all these behaviours are lumped together under one category.
“Employers must take sexual harassment seriously, but this case shows that if policies are vague and training is not delivered, dismissals can be deemed unfair."
She added that those enforcing sexual harassment policies should be trained on how to apply it fairly.
“The judge found no reasonable grounds for dismissal since there was no evidence anyone was offended by the photographs,” Chander continued.
“This highlights the importance of a fair process. Employers must ensure those conducting investigations and disciplinary hearings understand sexual harassment thoroughly.”
