Sacked Apple Employee Who Secretly Photographed a Female Colleague and Shared the Pictures was Unfairly Dismissed
In the case of Mr C Sieberer v Apple Retail UK Ltd, the sacked apple employee was dismissed for having secretly photographed a female colleague and shared the pictures with a co-worker. Apple Retail UK Ltd (“Apple”) considered these actions to constitute misconduct; however, the Employment Tribunal ruled that the dismissal had been unfair.
Below, we discuss the details surrounding Christoph Sieberer’s actions, the reasons for his dismissal, and the judgment of the Employment Tribunal.
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The Facts of the Case
Sacked Apple Employee Secretly Photographs Female Colleague
Christoph Sieberer (“the Claimant”) has worked for Apple Retail UK (“the Respondent”) in London since 2021. He is German-speaking and formed a particular friendship with another German-speaking employee whose name was Thomas.
In March 2023, the Claimant took a photograph of a female colleague, referred to as “M”. The photograph was taken in the office canteen, with a counter of sushi in the foreground and M in the distance. M was not aware that she had been photographed. The Claimant shared this photograph in an iMessage group comprising himself, Thomas, and two female colleagues (Hana and Laura).
It was known within the group that Thomas was attracted to M, although he did not know her. The Claimant accompanied the photograph with the message “M**, you’re welcome, Thomas”, specifying M’s name, to which Thomas responded “Look at bae there… So cute. Working her ass off but still looking great” and then “That’s my girl”.
Subsequently, in April 2023, the Claimant took another photograph of M without her knowledge. On this occasion, the photograph was taken from three floors above and appeared to show M working on a sofa. The Claimant sent this photograph to Thomas via WhatsApp who later showed it to Hana. Thomas also made verbal comments about his attraction to M.
Other Female Colleagues Report “Demeaning and Inappropriate” Behaviour
Hana discussed the Claimant’s photographs of M and Thomas’s comments about her with another colleague who urged her to report the behaviour. She then raised her concerns with her manager and both she and the other colleague provided statements. They were supported by a third colleague who had not seen the photographs.
In her statement, Hana said that Thomas’s comments had been “inappropriate, demeaning, and unprofessional”, but did not refer to the Claimant’s conduct. The Claimant was also interviewed by the same manager shortly afterwards. He admitted to having taken the photographs without M’s consent.
When asked if he believed the photographs constituted sexual harassment, the Claimant said that they probably did. He agreed that he had recorded an employee without their consent.
Sacked Apple Employee Disciplined for Alleged Misconduct
The Claimant was invited to a disciplinary hearing for potential misconduct. This allegedly comprised sexual harassment and gross misconduct in breach of the Respondent’s harassment and business conduct policies respectively. Mrs Surtees, Team Leader of People Planning Operations, conducted the disciplinary hearing on 3 May 2023.
Again, the Claimant admitted to having secretly photographed M on two separate occasions and sharing these photographs with Thomas. He confirmed that taking the photographs without consent had been wrong, but they were not intended to be sexual. Having been taken in an open space, there was no intention to harass, bully, or discriminate. He expressed remorse for his actions and described them as “a very thoughtless moment” stating he “got carried away”.
The Respondent subsequently deemed the sacked Apple employee’s actions as misconduct. They said his actions constituted a lack of respect contrary to “one of Apple’s guiding principles of business conduct”. Moreover, such photographs demonstrated harassment contrary to the Apple’s harassment policies as well.
They also pointed out that sharing the photographs constituted a breach of M’s privacy; something that the Claimant had failed to understand the severity of.
Team Leader Confirms Claimant’s Misconduct in Dismissal Appeal
The sacked Apple employee appealed his summary dismissal, and the appeal was conducted by Mr Potter who interviewed the Claimant and Mrs Surtees separately.
During her interview, Mrs Surtees reiterated that the Claimant’s actions constituted gross misconduct. Furthermore, she felt the Claimant’s remorse was due to being caught rather than for his conduct. She also clarified that the photographs constituted sexual harassment because the harassment policy “talks about pictures of people and protected characteristics so in this case someone’s gender because they were talking about appearance of a woman and having a crush on a woman…”.
Mr Potter upheld Mrs Surtees’s decision. In a letter to the Claimant, he stated “I believe that your actions did constitute harassment as described in [the Apple harassment policies] and this is considered gross misconduct for which summary dismissal is a potential outcome.” The sacked Apple employee subsequently brought a claim of unfair dismissal against his former employer.
The Employment Tribunal’s Judgment
Fair Reason For Dismissal of Sacked Apple Employee, Says ET
Christoph Sieberer’s claim was heard by Employment Judge Walker in the Central London Employment Tribunal. Having considered the facts of the case, the tribunal held that the sacked Apple employee had been unfairly dismissed.
The principal reason for the dismissal was that the taking and sharing of photographs without consent constituted sexual harassment contrary to Apple’s harassment policies. The tribunal confirmed that this reason is related to conduct, which is a potentially fair reason for dismissal.
However, the tribunal stated that it was wrong for Mrs Surtees to have assumed that secretly photographing a female colleague inevitably constituted sexual harassment which was gross misconduct.
Not All Photographs Amount to Sexual Harassment
In its judgment, the tribunal noted the various methods specified within Apple’s harassment policy by which harassment could occur. This includes jokes, written or electronic communications, posters, and photographs. It stated: “Not all jokes amount to harassment and not all electronic communications such as emails do either. […] The methods listed have to have something which is harassment within them. They are not by themselves harassment even if they reference a female.”
Moreover, the tribunal noted that there was no mention in the Claimant’s dismissal letter of how his conduct impacted others. This was another key factor within Apple’s harassment policies and a legal requirement for harassment to be proven under the Equality Act 2010.
Judge Walker concluded by saying, “There were no reasonable grounds for the decision at the time that [Mr Sieberer] had committed sexual harassment or indeed any harassment, whether as defined in the Equality Act or pursuant to some more general idea of the concept.”
The tribunal also found that Apple had not considered mitigating factors when deciding on disciplinary action. This included his previous good record with the company or the impact which dismissal would have on his life. The amount of the sacked Apple employee’s compensation for unfair dismissal is yet to be decided.
Claim with Redmans
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