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24 July 2013

Victimisation following unsubstantiated grievances

The Employment Appeal Tribunal (EAT) has ruled that an employee who was dismissed as a result of what his employer claimed was a loss of trust and confidence, after raising a large number of unsubstantiated grievances, had been victimised under the Equality Act 2010. 

Facts

Mr W worked for West North West Homes Leeds Limited (the Company).  Over a five year period he raised 10 grievances, the first of which stemmed from his dissatisfaction with the Company’s findings following an investigation into alleged racist comments and racist attitudes of his colleagues.

Mr W then proceeded to raise nine further grievances relating to various aspects of his workplace – from the same racism allegations as before, to issues with the grievance procedure, to alleged victimisation due to the raising of grievances, amongst others.  The Company rejected all of his grievances.  He simultaneously brought nine claims in the employment tribunal, for race discrimination, harassment and victimisation.  He also brought a claim for unfair dismissal after the Company dismissed him on the basis that the relationship between the two parties had “irretrievably” broken down and that there was no longer trust and confidence between them.

The tribunal upheld his unfair dismissal claim, but dismissed all the other claims.

The tribunal found that Mr W’s “incurable disaffection” had resulted in irretrievable damage to the working relationship.  They considered the case to be “on all fours” with the case of Martin v Devonshire’s Solicitors [2010] UKEAT 0086/10 (in which a mentally ill employee who kept raising bogus grievances, but who genuinely believed them to be true, was dismissed; the EAT held that the reason for dismissal was sufficiently separate to the protected act).

The tribunal concluded that he had been dismissed for ‘some other substantial reason’, but the dismissal was unfair. This was because the Company had failed to give Mr W a chance to “mend his ways” or a warning that dismissal may occur. However, the tribunal reduced the award by 90% (a Polkey deduction), as they took into account the likelihood (from occupational health reports) that he would have been dismissed for ill health in the very near future in any event.

Mr W appealed the tribunal’s decision both in relation to victimisation and the Polkey deduction.

Appeal

The EAT upheld both of the appeals.  The tribunal had failed to properly consider the extent to which Mr W’s conduct led to the dismissal.  According to the EAT, his grievances were clearly protected acts which distinguished it from the Martin case.

The EAT stressed the importance of viewing Martin as a very distinct and unusual case, and not one to be used as a way around the victimisation laws:  “It is a slippery slope towards neutering the concept of victimisation if the irrationality and multiplicity of grievances can lead, as a matter of routine, to the case being placed outside the scope of section 27 of the Equality Act 2010.”

Comment

The situation faced by the employer in this case will be familiar to many employers.  The case emphasises the importance of ensuring that each situation is properly investigated, and every effort made to resolve it, however frustrating it might be to deal with an individual who raises such a large volume of complaints.

Part of the tribunal’s reasoning in this case appears to have been that Mr W would inevitably have raised further grievances in the future, had he remained in employment.  It is important to bear in mind that the victimisation provisions under the Equality Act cover both future and past protected acts.  If an individual is dismissed because there is a likelihood of a future grievance being raised this poses a risk of a victimisation claim.

A link to the judgment can be found here