Cultural Differences: No Excuse for Unacceptable Conduct

Isabella Brunton appeared for Long Clawson Dairy, the Respondent, in Mr W Falfus v Long Clawson Dairy Limited (6004179/2024), instructed by Knights plc.

Background

Mr Falfus, a Polish national, was employed by the Respondent as a Production Operative from 26 May 2015. On 29 February 2024, an 18-year-old female employee complained that Mr Falfus had followed her into the ladies’ toilets and made suggestive comments. Ms Lave, a Production Manager from the Respondent, was a partial witness to the incident and made a contemporaneous statement on the same day. Following a disciplinary hearing held over two dates, 21 March 2024 and 28 March 2024, Mr Falfus was summarily dismissed on grounds of gross misconduct. He appealed the decision, however following an appeal hearing on 10 April 2024 the dismissal decision was upheld.

ET Findings

At the tribunal hearing Mr Falfus was assisted by a Polish translator. He identified a number of particular objections to the dismissal process that he said made it unfair [10]. One, was that there should have been training on how to behave because of cultural differences.

EJ Adkinson concluded that Ms Tisserand (chair of the disciplinary hearing) and Mr Kettle (chair of the appeal hearing) held an honest belief that Mr Falfus was guilty of misconduct, namely sexual harassment, which was therefore so severe to amount to gross misconduct [39.1]. EJ Adkinson also concluded that there was a reasonable and fair investigation and that the decision to dismiss summarily was within the “range of reasonable responses” open to the employer [39.4].

The judge also dealt specifically with Mr Falfus’ argument about the need to be trained on cultural differences and behaviour. On this, he concluded the following [40]:

“Training has its place. It may in some situations, with some workforce profiles and in some industries be necessary. I do not accept however that a reasonable employer would have been expected to have to train (in this case) men not to go into the (in this case) ladies’ toilets with a woman and then made suggestive comments. Firstly, it is plain that this was the ladies’ toilets – there is a sign on the door – and he had no business going in there. Secondly, there was no evidence that in Polish culture it is acceptable in the workplace toilets for a man to enter the ladies’ toilets, let alone to make the suggestive remarks that he did. Thirdly there is no evidence to believe that this is one of those borderline cases where there is a difference in culture that would not be apparent to a foreign worker working in the U.K. that this was unacceptable. There are things one may need to be told about differences – this was not one of them.”

This case clearly highlights the limitations of arguments regarding cultural differences in conduct dismissals and acts as a reminder that training is not required to address acts which are blatantly unacceptable.