Can your employee refer to you as a fat pink children's character?

Andrew Scott-Howman, Partner | Wednesday 28 March 2007

As first published in The Independent, 28 March 2007.

Why not to call the boss "Mr Blobby".

We have all heard the clichés:  "If you don’t like the heat, get out of the kitchen."  "That’s just not the way we do things around here."

But is it possible that different workplaces can have different standards of conduct – just because they have a different work culture?

For those of you who are fortunate enough not to remember him, Mr Blobby was a rather surprising star of the 1990s.  Created by the British comedian Noel Edmonds, he was a tall, pink humanoid, with yellow spots and a ridiculous permanent smile. 

Used as the protagonist for a series of practical jokes, Mr Blobby was perhaps best known for two things: being unfortunately fat, and crashing into things. 

He certainly was not renowned for his eloquence - he could say only one word: "Blobby" which he uttered repeatedly. 

Remarkably, Mr Blobby was something of a counter-culture hit.  Children adored him.  Toy shops were littered with lunch boxes and cuddly toys fashioned after his appearance.  And adults thought he was quite funny too.  His ungainly appearances as a prankster earned him adoration – and even a number one song. 

But, popular as he may have been, how would you like it if you found out that your employees had nicknamed you "Mr Blobby"?  And would it be enough for you to fire her?

Believe it or not, this issue recently came before the English Employment Tribunal. 

Agnes Wilkie was a television producer with Scottish Television.  She was suspended, then dismissed, from her job as Head of Features when emails were discovered in which she referred to her boss, Bobby Hain, as a "big fat thing" and a "blob".

Wilkie had included the comments in emails which she had sent to Hain's personal assistant.  Unfortunately for her, Hain read his assistant's mail and was said to be "mortified" at the references which his employee had made to him.  He accused Wilkie of behaving in a way that was "tantamount to bullying". 

Wilkie's defence was interesting.  She did not deny sending the emails – and using the unflattering descriptions.  But she said that the abuse was, in effect, good-hearted, and that it was part of the culture that one expected in the media industry. 

Hain was said to have had the name "Mr Blobby" when he had previously worked as a disc jockey.  Further, Wilkie said that the nickname "Mr Blobby" had developed from that – and was used by others in the industry as a nickname.

Put another way, Wilkie's defence was that many within the industry had given Hain a hard time about his appearance – and that she was doing no more than refer to nicknames that others also used for him.  He was used to giving this sort of ribbing, and should be big enough (no pun) to withstand it too. 

Upon realising that Hain had read her emails, Wilkie asked if she could see him to apologise and explain the context of her language.  Instead, however, the company chose to investigate the matter – and ended up dismissing her. 

The Employment Tribunal was generally unimpressed with Wilkie’s arguments.  It did not accept Wilkie's explanations, and said that her behaviour had been calculated to undermine her boss. 

In other words, the Tribunal said that Wilkie had behaved inappropriately by using the nicknames for Hain.

On the other hand, the Tribunal also took a dim view of the company's actions.  It found that its decision to dismiss Wilkie had been unfair – because she had offered to apologise but had been rebuked.

There has been considerable reaction in the United Kingdom to the decision.  In the main, many commentators have voiced concerns about the way in which the Tribunal’s decision appears to discount the appropriateness of good-hearted banter – and the need for those in certain positions to be thick-skinned. 

But what would the position be in New Zealand?

Under New Zealand law, determining what constitutes inappropriate conduct often requirements consideration of the circumstances of the particular workplace. 

Some things (like racist abuse, for example) are never acceptable. But in more moderate circumstance, acceptability may turn on the particular workplace (or industry) culture.  What may be acceptable language on a building site, for example, may be unacceptable in the context of a church welfare organisation. 

In this case, it is difficult to predict whether the employee's conduct would be held to justify dismissal.  On the one hand, the language which she used was capable of causing offence.  It was potentially an imprudent thing for a woman to say about her boss (especially behind his back, by way of an email).

On the other hand, however, if she was able to show that the use of nicknames – and, in particular, good-hearted joking about her boss's appearance and weight – was common within her workplace or industry (and that her boss was aware of this), she might succeed in establishing that any breach did not warrant dismissal.

So what is the moral of the story? 

Think carefully before you send an email joking about your boss's appearance or weight!

Blobby, Blobby, Blobby, Blobby?