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Clik here to view.In the case of Furlong v BMC Software Limited (ET/2701283/09) the Employment Tribunal found the employer liable for sex discrimination, sexual harassment, and victimisation where the employer had failed to deal with a complaint from an employee regarding colleagues’ use of and discussions regarding lap dancing clubs (and potentially prostitutes), and had discourage the employee from making a formal complaint about sexual harassment by a manager.

Ms Furlong commenced employment with BMC Software Limited as a senior accounts manager in February 2007. This role was male-dominated and there was a ‘macho’ sales environment. In 2008 Ms Furlong attended a work form in Nashville (USA). During the work forum a company event was held at a well-known bar called “Coyote Ugly”; Ms Furlong declined an invitation to this event and was later told that other women in the company’s party had been encouraged to dance on tables and that, should she have been present, she would have been “up on the table” topless. During the same Nashville event a senior vice president of the company, Mr Fenelli, groped Ms Furlong’s button and told her that he would “like to eat her like a marshmallow”. Ms Furlong reported this to her line manager but was told that reporting the incident “would not do [her] any favours”. She was also told in another meeting by another manager that colleagues had been speculating about Ms Furlong having an affair with a married colleague during the Nashville event.

In October 2008 Ms Furlong raised a formal complaint regarding the following: that she had been disadvantaged in the allocation of accounts; that the working hours of the company were a disadvantage to her as a single parent; that she had been sexually harassed by a colleague at a work forum in Nashville (USA); and that inappropriate venues were used by the company for meetings, including lap dancing clubs and brothels.

All of Ms Furlong’s grievances were rejected by Mr Lewis, who heard the grievance. He concluded, among other things,  that there was no “concrete evidence” of colleagues attending lap dancing clubs. Ms Furlong appealed this decision but her appeal was rejected. Ms Furlong then served a discrimination questionnaire on the company but was told that there would be no reply to this as it was “oppressive”. She subsequently made claims to the Employment Tribunal for direct sex discrimination, indirect discrimination, sexual harassment, and victimisation.

The Employment Tribunal found against Ms Furlong with regards to her indirect discrimination claims, finding that the new work regime (regarding the allocation of work and long working hours) did not put women at a particular disadvantage and did not in fact put Ms Furlong at a disadvantage (as she was able to make the meetings).

The Tribunal did, however, find in Ms Furlong’s favour with regards to her claims for direct sex discrimination, sexual harassment, and victimisation, holding that:

• She was directly discriminated against by comments made to her about rumours of a relationship with a colleague in Nashville – the Tribunal found that she was treated differently from men in the office and that this less favourable treatment was on the grounds of her sex
• She was directly discriminated against by being discouraged from making a complaint about Mr Fenelli’s conduct
• The use of lap dancing clubs and discussions about the in the office amounted to less favourable treatment as she would not have been able to participate in such discussions
• The failure to properly investigate her formal grievance amounted to victimisation
• The conduct of Mr Fenelli constituted sexual harassment and that the company was vicariously liable for this (as it was in control of the environment within which the harassment took place)
• The use of lap dancing clubs by colleagues, and the company’s conduct in acquiescing to that conduct, amounted to sexual harassment

The Employment Tribunal awarded Ms Furlong £12,000 for injury to feelings, £20,618 for loss of earnings, and £2,000 for personal injury.

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers must take care to implement equal opportunities policies in the workplace and to take steps to educate their employees in these policies – a failure to do so can mean that the employer is held vicariously liable for acts of harassment by its employees, where it could have avoided that liability if it took reasonably practicable steps to implement the policies in the workplace.”

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Clik here to view.In the case of Edwards v Bramble Foods Ltd ET/20601556/2015 the Employment Tribunal held that an employer had fairly dismissed an employee when she consistently refused to work overtime on Saturday mornings and became disruptive.

Mrs Edwards worked for Bramble Foods Ltd (“Brambles”), a premium British food manufacturer and wholesaler. It employs about 75 people.

The ‘Christmas period’ from mid-September to late December is Brambles’ busiest period in the year, when it produces, packs and sells goods and hampers for Christmas. All of its employees are expected to work extra hours in order to ensure that all orders are fulfilled on time, with the employees’ contracts of employment containing a clause stipulating that Brambles could on occasion ask them to work such further hours as may be reasonably required.

Prior to 2014 the working of overtime was voluntary. From 2014 onwards the employer changed its practices and formalised overtime, requiring employees to specify which Saturday mornings they could work in September and October. Mrs Edwards refused to work any overtime in 2014, arguing that she had care commitments.

In June 2015 Brambles provided its staff with a form and asked them to indicate their availability to work between four and eight Saturday mornings in September and October (2015). Only Mrs Edwards and one other employee refused to work any overtime, but the other employee subsequently agreed to work overtime.

Mrs Edwards continued to refuse to work overtime, despite a number of informal discussions with management about the issue. It was explained to her that it was necessary for employees to undertake overtime due to the workload and that it was unfair for her to expect other employees to take up this burden but not her. Mrs Edwards stated that she would not work overtime on Saturday mornings as this was when she spent time with her husband.

On 3 August 2015 matters came to a head when Mrs Edwards reacted angrily following an informal meeting, banging her fist on a desk, shouting and swearing. A number of her colleagues complained about her behaviour, and a couple asked to be moved away from Mrs Edwards due to the fact that she was swearing and continually complaining about Saturdays. Mrs Edwards was sent home for three days on 5 August 2015 and asked to come back to work with a better attitude.

A further meeting was held on 1 September 2015 but Mrs Edwards still refused to work Saturdays. On 14 September 2015 a colleague raised a formal grievance regarding Mrs Edwards’ behaviour at work, alleging that Mrs Edwards was mocking those employees who had agreed to work Saturdays and that she was ‘boasting’ about being able to have a lie-in on Saturdays.

On 29 September 2015 Mrs Edwards was invited to a disciplinary hearing to address allegations that she had refused reasonable management instructions and that she had engaged in inappropriate and unacceptable conduct towards a fellow employee. A disciplinary hearing took place on 7 October 2015, at which the allegations were covered and Mrs Edwards continued to refuse to work Saturdays.

On 13 October 2015 Mrs Edwards was dismissed for gross misconduct.

Mrs Edwards brought a claim to the Employment Tribunal for unfair dismissal.

The Employment Tribunal held that Brambles’ dismissal of Mrs Edwards was fair, notwithstanding some minor procedural flaws in the disciplinary process.  The Tribunal held that it was reasonable for Brambles’ management to expect Mrs Edwards to share some of the overtime burden, as required by her contract of employment, and that she had no legitimate reason for doing so. The Tribunal also held that Mrs Edwards had become disruptive to her colleagues and that there could have been serious consequences if Brambles had not dismissed her.

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “The Tribunal praised the employer in this case for the patience with which it dealt with the disaffected employee – a lesson from this case is that employers should make some attempts to resolve disputes in the workplace but that, should the employer then take further steps to dismiss an employee because of a dispute, employers have a fairly free rein to take steps which are beneficial for their businesses.”

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Clik here to view.In the case of Gayle v Donaldson Associates Ltd ET/2302628/15 the Employment Tribunal rejected an employee’s claim of discrimination where the employer failed to follow its capability procedure; the Employment Tribunal found that there was no discrimination as the employer did not follow the capability procedure in any cases where an employee did not have sufficient continuous employment to make a claim for unfair dismissal.

Ms Gayle was employed as administration manager by Donaldson Associates Ltd, a firm of consulting engineers, from May 2014 until her dismissal on 5 August 2015. Her line manager was Mr Kite – Mr Kite was initially pleased with Ms Gayle’s performance but developed the opinion that she lacked attention to detail (for example, misspelling a client’s name, taking down a telephone message incorrectly etc.).

In June 2015 Mr Kite, against the advice of the HR manager, Ms Bridgwood, placed Ms Gayle on a Performance Improvement Plan (“PIP”). Ms Gayle complained about the imposition of the PIP and the use of the capability procedure, arguing that the use of the PIP was unreasonable and discriminatory.

Two weeks after the PIP had been imposed Ms Gayle went off work sick. Mr Kite decided that she should be dismissed, given that she had not shown any improvement in those two weeks.

After being dismissed Ms Gayle made a claim to the Employment Tribunal for direct discrimination and victimisation on the grounds of race and sex. She argued that the managing director of the company, Ms Capel, had interfered with Mr Kite’s management and that the imposition of the PIP was in breach of the capability procedure.

The Employment Tribunal found against Ms Gayle in respect of both her claim for direct discrimination and victimisation. It found that the company had a custom and practice of not applying the capability procedure when the employee did not have sufficient continuous service to bring a claim for unfair dismissal; as Ms Gayle did not have the necessary continuous service to bring a claim for unfair dismissal the capability procedure was therefore not properly applied and she was dismissed. The Tribunal found that this was not discrimination as the procedure was applied uniformly by the company.

In respect of Ms Gayle’s claim for victimisation, the Employment Tribunal held that Ms Gayle had not undertaken a ‘protected act’ as, although she had complained that she was being discriminated against by the imposition of the PIP, she had not specified what protected characteristic(s) she was relying on. The Tribunal held that, if they were wrong on this point, Ms Gayle had not been subjected to any detriment because of her complaint of discrimination as the person who had made the decision to place her on the PIP (Mr Kite) was not aware of the contents of the complaint that had been made.

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers should take care to implement procedures and to follow those procedures, otherwise they may find that a failure to follow procedure may result in a claim for discrimination and/or victimisation, in this case. Further, employers may open themselves up to unwelcome and public criticism by the Employment Tribunal if they fail to take appropriate or consistent action where employees are allegedly underperforming.”

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Clik here to view.In the case of Terraneo v Whitbread Group plc ET/3401249/15 the Employment Tribunal held that an employee had been unfairly dismissed and discriminated against because of her age by, among other things, her employer’s failure to carry out an investigation into her grievance.

Ms Terraneo commenced employment with Whitbread Group plc (“Whitbread”) in August 1996. Her job title was “breakfast supervisor”. Unlike managers or team leaders, Ms Terraneo was not required to wear an apron.

From 2011 onwards Ms Terraneo received a number of warnings for various acts of alleged misconduct, including smoking in front of the restaurant and breaching health and safety rules. She was given a written warning. She also received warnings for her performance levels, a failure to carry out reasonable management instructions, and rude behaviour towards guests, employees or suppliers.

At the end of 2014 Ms Terraneo was twice caught smoking in prohibited areas. She was summoned to a disciplinary hearing on 8 January 2015 and summarily dismissed for gross misconduct. Ms Terraneo appealed this decision and was successful, with the sanction reduced to a final written warning. Ms Terraneo was sent a letter on 11 February 2015 confirming this.

A “return to work” meeting was held on 23 February 2015 at which Ms Terraneo lodged claims for bullying, vexatious allegations made against her, and age discrimination in relation to being unsupported at work and bullied because of her age.

On 4 March 2015 Ms Terraneo returned to work. Upon her return to work Ms Terraneo found that she was now required to wear an apron, that her hours of work had been reduced from 42 hours per week to 28.5 hours per week, and that her shift had been altered to start an hour later, although no-one had told her this. Ms Terraneo refused to wear the apron because it was dirty and that she had never been required to wear one peviously.

At the end of the shift on 4 March 2015 Ms Terraneo was called to a meeting with her line manager, Ms Bongiovani. Mr Silvera was also in attendance at this meeting. In this meeting Ms Terraneo was given a letter suspending her pending an investigation. There was apparently a heated altercation at this meeting and Ms Terraneo was told by Mr Silvera that “there is no room for you in this establishment, get out, get out”.

On 5 March 2015 Ms Terraneo resigned from her employment with immediate effect, with the following being stated as reason: underhand and vexatious disciplinary treatment; what had occurred on 4 March 2015; being demoted; and a general lost of trust and confidence in management. She also asserted that these reasons constituted age discrimination.

On 6 March 2015 Ms Kinsman was appointed to handle Ms Terraneo’s complaint dated 23 February 2015. This investigation was not completed properly and there was no investigation into any of the allegations of discrimination or bullying. Mr Kinsman’s decision was to reject Ms Terraneo’s complaint and she appealed. However, no appeal process was ever commenced by Whitbread.

Ms Terraneo brought claims in the Employment Tribunal for constructive dismissal, wrongful dismissal, direct age discrimination, harassment, and victimisation.

The Employment Tribunal upheld part of Ms Terraneo’s claim for age discrimination, finding that there was evidence of a culture of age discrimination at Whitbread and that there was no explanation for the failure to undertake a proper investigation into Ms Terraneo’s grievance. The Tribunal also found that the events of 4 March 2015 were engineered to force Ms Terraneo out of her job because of her age and found that the events of that day therefore constituted harassment on the grounds of age. The Employment Tribunal rejected, however, Ms Terraneo’s claims that she was disciplined for smoking because of her age, holding that Whitbread’s management applied a uniform policy on this issue. It also rejected Ms Terraneo’s claim of victimisation, finding that although she had made a protected disclosure (her written grievance handed in on 23 February 2015) Ms Terraneo could not point to any facts to show that she had been subjected to any detriment because of her complaint.

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “It is important for businesses to properly and fairly investigate complaints made by employees and this is particularly the case where the employee is making a complaint of discrimination – a failure to investigate such allegations or to produce a reasonable and fair outcome may feed into further allegations of discrimination.”

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Clik here to view.In the case of Peters v Rock Chemicals Limited t/a Rock Oil Company 2404460/2015 the Employment Tribunal held that the dismissal of a 67-year-old employee was because of his age and not because of allegations that he was responsible for a failure to pay PAYE to HMRC.

Mr Peters commenced employment with Rock Chemicals Limited (“Rock Chemicals”) in 1998 as company accountant. His principal responsibility was to maintain the company accounts. He was also responsible for line managing a number of members of staff, including Ms Fiona Wright; Ms Fiona Wright was the sister of Charles Hewitt (Chairman of Rock Chemicals) and aunt to Greg Hewitt (Managing Director of Rock Chemicals). Ms Wright was responsible as Finance Manager for the receipt and payment of monies for the company.

In 2009, when Mr Peters was 62, there were discussions between Charles Hewitt and Mr Peters as to when he might retire; Mr Peters intimated that he might look to retire in 2011. Mr Peters did, however, not retire in 2011 but continued to work. In late 2011 a new employee, Mr Mullins started work with Rock Chemicals. In 2012 Mr Peters began to suspect that it was intended that Mr Mullins was to be his successor at the company, principally as Mr Mullins was introduced to the company’s bank as Mr Peters’ successor; Mr Peters’ relationship with Charles Hewitt, which was previously good, also started to deteriorate, with Mr Peters feeling that Mr Hewitt was ignoring .

In July 2012 Rock Chemicals was served with a penalty notice to the sum of £18,824.04 for late payment of PAYE. Charles Hewitt was extremely happy that the company had been served with a penalty notice, and Mr Peters was blamed for the penalty despite PAYE being Ms Wright’s area of responsibility. Mr Peters was in fact the only member of staff blamed for the PAYE penalty.

Various other allegations of poor performance were put to Mr Peters and he started to suffer from anxiety and stress. As a result of this he took his first period of certified sick leave from the company in March 2013. Later that month Rock Chemicals instructed  a medical practitioner to undertake a medical examination of Mr Peters, but the letter of instruction contained comments relating to Mr Peters’ age and his continuing ability to do his job. Rock Chemicals also failed to implement the recommendations of two medical reports regarding phasing Mr Peters back into the workplace and led to him about his bonus, as well as demanding the return of his company car and refusing to provide him with any information to allow him to respond to the allegations against him.

Mr Peters returned to work in December 2014 but was almost immediately upon his return to work subjected to a disciplinary investigation and dismissed on 14 January 2015, with one of the reasons for his dismissal being the serving of the penalty notice relating to PAYE. Other reasons for his dismissal included historical allegations that he had previously given an explanation for.

Mr Peters brought Employment Tribunal claims for unfair dismissal, age discrimination, and breach of contract. The claim came to the Manchester Employment Tribunal in October 2015 and the Employment Tribunal found in Mr Peter’s favour in all three heads of claim.

With regards to the unfair dismissal claim, the Employment Tribunal found that Rock Chemicals had pre-determined Mr Peters’ culpability for the conduct he was dismissed for, that the company had failed to carry out a reasonable investigation (in particular, it had failed to provide relevant requested documents to Mr Peters), and that Charles Hewitt, the dismissing officer, did not have a reasonable or genuine belief that Mr Peters was culpable of the allegations put to him.

With regards to the age discrimination claim, the Employment Tribunal found that Mr Peters’ dismissal and the conduct leading up to his dismissal were inextricably linked with Mr Peters’ age, finding that the events leading up to Mr Peters’ dismissal allowed an inference of age discrimination – an inference that Rock Chemicals could not rebut.

The Employment Tribunal also found that there had been a breach of contract in not paying Mr Peters his 2013 bonus. Rock Chemicals failed in a counter-claim against Mr Peters.

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “In the event of any allegations of misconduct employers should be careful to treat the relevant employees reasonably and to take measured steps that are in accordance with established disciplinary procedures – if the employer fails to treat the employee reasonably or deviates from accepted practice then this could lead to a finding of unfair dismissal or, even, a finding that such conduct constitutes an inference of discrimination (as in this case).”

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Clik here to view.In the case of Sohrabi-Karyani v Brighton and Hove Bus and Coach Company Ltd ET/2302706/15 the Employment Tribunal determined that the failure by the employer to take steps to consult with an employee on why an alternative position was not suitable for them constituted discrimination.

Mr Sohrabi-Karyani (“the Claimant”) worked for a number of years for the Brighton and Hove Bus and Coach Company Ltd (“the Respondent”) as a bus driver. On 9 October 2014 he was, whilst driving a bus for the Respondent, punched in the face and developed blurred vision in his right eye. As a result of this injury the Claimant was unable to drive (whether a bus or a car, or any other vehicle) for a substantial period of time (until December 2015). He was also signed off work sick from the date of the assault and remained signed off work until he was dismissed. Under the Claimant’s contract of employment he was entitled to be paid full pay for 104 weeks whilst off work sick, as the injury causing him to be off work had occurred at work.

On 12 March 2015 the Respondent’s occupational health adviser advised the Respondent that the Claimant should be fit to return to work from 22 April 2015. On 19 March 2015 the Claimant was summoned to a capability meeting and informed that he would need to return to work before 22 April 2015. A formal capability meeting was then held on 23 March 2015, at which the Claimant was dismissed. However, the Claimant appealed against his dismissal and two appeal processes were conducted, during which a vacancy arose at the Respondent for a temporary night cleaner; it was therefore not until 26 June 2015 that the Claimant was in fact dismissed.

The Claimant’s first appeal against his dismissal was not successful. The second appeal, chaired by Mr Carey, found that the position of temporary night cleaner was available and he instructed the occupational health adviser, Dr Perry, to assess whether the Claimant was fit to undertake cleaning duties. Dr Perry provided a report dated 7 May 2015 which confirmed that the Claimant was in fact fit to for a cleaning position but suggested that one of the Respondent’s managers, Mr Reid, undertake a risk assessment with the Claimant to determine whether it was appropriate for the Claimant to undertake the cleaning position. Mr Reid undertook the risk assessment on 14 May 2015 but failed to speak to, or meet with, the Claimant in order to discuss his findings from the risk assessment.

A further appeal hearing was held on 26 June 2015, chaired by Mr Coyle. Mr Coyle considered the paperwork, including Mr Reid’s risk assessment and Dr Perry’s reports, and concluded at a short meeting that he could not place the Claimant in the position of temporary night manager. He therefore decided to uphold the Claimant’s dismissal, effective on that date.

The Claimant brought to the Employment Tribunal claims for unfair dismissal, discrimination arising from disability, failure to make reasonable adjustments, and breach of contract.

The Employment Tribunal found that, between 23 March 2015 and 26 June 2015, the Claimant was disabled for the purposes of section 6 of the Equality Act 2010. The Tribunal also found that the dismissal of the Claimant on 26 June 2015 was unfavourable treatment of the Claimant. The Tribunal found that this unfavourable treatment had arisen because of something in consequence of the Claimant’s disability (i.e. his inability to drive a bus).

The main question for the Tribunal to determine was, therefore, was the Claimant’s dismissal a proportionate means of achieving a legitimate aim? The Tribunal found that it was not as, although the Respondent had the legitimate aim of ensuring the smooth running of a quality bus service and maintaining a standard of service to its customers as well as ensuring workplace safety, the Claimant’s dismissal was not a proportionate means of achieving this aim: the Respondent had not sufficiently explored alternative options to dismissal (e.g. a “buddy arrangement” for the Claimant upon his return to work, the possibility of the Claimant working during the day rather than at night, or the Claimant undertaking a trial period for the cleaning position at night) and had therefore not acted proportionately in dismissing.

The Tribunal also found in the Claimant’s favour in his unfair dismissal claim, although his claim for failure to make reasonable adjustments failed. The Claimant did not pursue his breach of contract claim at the Tribunal hearing.

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case demonstrates that, in circumstances where an employer is considering dismissing an employee because of the effect of a disability, it is incumbent upon the employer to carefully analyse what reasonably practicable steps could be taken to avoid dismissing the employee. A failure to take such steps can render the dismissal discriminatory in nature.”

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Clik here to view.In the case of Creighton v Together Housing Association Ltd ET/2400978/2016 the Employment Tribunal held that an employer had fairly dismissed an employee after it came to light that the employee concerned had posted derogatory comments about his colleagues and the employer a number of years previously.

Mr Creighton commenced employment with Together Housing Association Ltd (“Together”) as an apprentice in 1987. In 2014 he was promoted to the position of lead gas engineer, a role which involved managing gas engineers.

In 2015 a complaint was made by one of the gas engineers that he was being bullied by Mr Creighton. In November 2015 Together suspended Mr Creighton whilst it investigated an allegation of bullying behaviour made by the engineer. During the investigation process the engineer informed Together that, in addition to the alleged bullying, Mr Creighton had posted derogatory comment about his colleagues and his employer on his Twitter account. Mr Creighton’s Twitter account was “open”, which meant that any comments he published on Twitter were available for anyone to read.

Together informed Mr Creighton that the disciplinary process was being instigated as a result of the allegations of bullying and making derogatory comments on Twitter. He was also told that these allegations, if proven, could lead to his dismissal.

At the disciplinary hearing Mr Creighton was asked to explain the comments that he had posted on Twitter, including a ‘Tweet’ that he had sent to two colleagues that stated: “just carry on and pick up your wage, this place is fucked. It’s full of absolute bell ends who ain’t got any balls”. Mr Creighton apologised for the comment and explained that he had thought at the time he had posted the comments (two or three years ago) that his Tweets were private. He asked to be treated sympathetically after nearly 30 years’ service.

Together dismissed the bullying allegations because of a lack of conclusive evidence, but upheld the allegation that Mr Creighton had posted derogatory comments on Twitter. He was, as a result, dismissed for gross misconduct.

Mr Creighton appealed the decision to dismiss him on a number of bases, including (among others) that the investigation into his misconduct had not been reasonable and that he had not been aware of the consequences of his Tweets.

The appeal panel dismissed Mr Creighton’s appeal, holding that he had been aware (or should reasonably have been aware) of the consequences of his actions, as the organisation’s disciplinary policy included as an example of gross misconduct “defaming the organisation or damaging its reputation by use of social media”.

Mr Creighton brought a claim for unfair dismissal in the Employment Tribunal.

The Employment Tribunal dismissed Mr Creighton’s claim for unfair dismissal, holding that Together’s investigation had been reasonable: the organisation had put the allegations to Mr Creighton, provided him with copies of the relevant evidence, had given him a chance to explain his actions, and had permitted him to appeal the decision. Mr Creighton had been, further, allowed to cross-examine witnesses at his disciplinary hearing and to put his case. The Tribunal therefore held that a fair process had been followed and that the dismissal was within the range of reasonable responses open to Together in the circumstances.

Chris Hadrill, an employment solicitor at Redmans, commented on the case: “The job of the Tribunal is not to determine whether it thinks that an employer’s decision to dismiss was correct or not, but to determine whether a fair process was followed in reaching the conclusion and whether the decision reached was within the reasonable range of responses.”

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Clik here to view.In the case of Nally v Freshfield Care Ltd ET/2401774/14 the Employment Tribunal held that the employer had discriminated against the employee when he was dismissed for outbursts caused by his PTSD.

Mr Nally was employed by Freshfield Care Ltd (“Freshfield”), a care home operator, as a care worker. About 18 months into his period of employment with the company Mr Nally told a resident with dementia to “shut up”. Mr Nally was called to a meeting with the deputy manager and informed her that he had post-traumatic stress disorder (“PTSD”), that he had been experiencing stress and anxiety issues, and that he was receiving counselling. The deputy manager informed Mr Nally that he should provide her with his doctor’s details so that a medical report could be obtained, but no medical report was in fact obtained. Mr Nally was also told that his performance would be monitored for two weeks as a result of his outburst.

Shortly after the meeting with the deputy manager, Mr Nally had an argument with a colleague. As a result of this argument Mr Nally was dismissed, after a meeting with his manager and the deputy manager.

Mr Nally brought claims for direct discrimination, discrimination arising from disability, and failure to make reasonable adjustments. He was adjudged during the course of proceedings to be disabled for the purposes of the Equality Act 2010.

The Employment Tribunal rejected Mr Nally’s claims for direct disability discrimination and failure to make reasonable adjustments. In respect of the direct disability discrimination claim the Tribunal on the basis that he had not been less favourably treated than a colleague. In respect of the failure to make reasonable adjustments claim the Tribunal held that Freshfield did not know, and could not have been reasonably expected to know, that Mr Nally’s PTSD would put him at a substantial disadvantage as compared to his non-disabled colleagues.

The Employment Tribunal did, however, uphold Mr Nally’s claim for discrimination arising from disability (section 15 Equality Act 2010). It held that, as a result of the first meeting with the deputy manager, Freshfield was aware that Mr Nally was suffering from PTSD and was aware, or should reasonably have been aware, that at least some of Mr Nally’s behavioural difficulties arose from his condition. Further, the Employment Tribunal held that Freshfield’s actions in the circumstances had not been proportionate: the company could have take other steps than dismissal, particularly given that a medical report had not been obtained at the time of Mr Nally’s dismissal.

Mr Nally was awarded £8,514 in compensation by the Employment Tribunal, comprised of:

• £6,760 for injury to feelings; and
• £1,754 in respect of past loss of earnings

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “If an employer is given facts from which they might conclude that an employee is disabled, the employer must be extremely careful in managing the employee and, for example, making decision to dismiss that are fair and in accordance with a legitimate business reason – a failure to make such decisions could potentially mean that a successful discrimination claim is brought against the employer.”

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Clik here to view.In the case of Grosset v City of York Council ET/1801465/14 the Employment Tribunal held that the dismissal of a school teacher who suffers from cystic fibrosis for a serious error of judgment (showing an 18-rated film to a class of 15/16-year-olds) was discriminatory.

Mr Grosset was employed as head of the English department at Joseph Rowntree School (“the School”) . He suffers from cystic fibrosis, which did not normally affect his ability to undertake his role. However, Mr Grosset was required to undertake a strict regime of physical exercise each day in order to remedy his condition, and had to keep stress as low as possible (as an increase in stress would potentially cause his condition to deteriorate).

From the start of his employment at the School the then-head teacher, Mrs Wright, implemented adjustments to his duties in order to minimise the stress caused to him by his position – this included giving him sufficient notice of meetings and consulting with him over any major changes. In September 2013 a new head teacher, Mr Crane, commenced employment at the School. Mr Crane was not informed of the fact that Mr Grosset suffered from cystic fibrosis and was not informed of the measures that had previously been put in place for Mr Grosset.

Mr Crane put in place new systems for all departments, with the aim of improving outcomes for pupils, and increased the workload for the heads of departments. All of the departments were also subjected to extra scrutiny, with ‘Focus Fortnights’ introduced to enable the outcomes of each department to be scrutinised on a fortnightly basis. The new systems and extra scrutiny caused a substantial amount of extra work for the heads of departments.

Mr Grosset started to feel under strain as a result of the extra workload. On 24 September 2013 he wrote a letter to his union representative setting out a number of complaints about the changes Mr Crane had introduced, and started to make a log of incidents as they occurred. He then wrote a letter to Mr Crane on 10 October 2013 setting out, among other things, that the increased workload was causing him to suffer from stress, and that he did not believe that Mr Crane was sufficiently aware of the nature or effect of his disability. He also asked that there be a reduction in his teaching load and a reduction or prioritization of tasks and deadlines.

In October 2013 Mr Grosset was informed by his consultant that his lung function had fallen to below 50%, whereas it would normally be in the 60% range.

On 8 November 2013 Mr Grosset showed the 18-rated horror film ‘Halloween’ to a class of 15/16 year-olds. Later in November 2013 Mr Grosset felt that he could no longer continue to work due to the stress that his increased workload was causing him, and was signed off work sick. He remained absent from work due to illness until his dismissal.

On 29 November 2013, whilst covering for Mr Grosset in his absence, Mr Crane discovered that Mr Grosset had allow his students to watch ‘Halloween’. Mr Crane was concerned by this and called Mr Grosset to inform him that he was being suspended. He also asked that a colleague, Mr Haigh, investigate the incident. Mr Haigh conducted an investigation and concluded that Mr Grosset had shown the film to a class of vulnerable students without first obtaining parental consent, or seeking the approval of the head teacher. Mr Grosset was subsequently dismissed by way of letter dated 1 May 2014 for gross misconduct, after a disciplinary hearing was held. Mr Grosset appealed the decision to dismiss him but was not successful. He subsequently made a variety of claims in the Employment Tribunal, including claims for unfair dismissal, direct disability discrimination, discrimination arising from disability, indirect discrimination, harassment, victimisation, and failure to make reasonable adjustments.

The Employment Tribunal dismissed Mr Grosset’s claims for direct discrimination, indirect discrimination, harassment, unfair dismissal, and victimisation. It did, however, uphold his claims for discrimination arising from disability, failure to make reasonable adjustments, and breach of contract.

With regards to the discrimination arising from disability claim, the Employment Tribunal upheld two complaints: firstly, that the increase in his workload discriminated against him and, secondly, that his dismissal was discriminatory.

In respect of the first finding, the Tribunal held that there had been a significant increase in workload for Mr Grosset and that this was unfavourable treatment. The Tribunal also held that this unfavourable treatment arose because of something arising in consequence of Mr Grosset’s cystic fibrosis and that the School had failed to sufficiently consider alternatives that would have reduced Mr Grosset’s workload (and therefore his stress levels).

In respect of the second finding, the Tribunal held that Mr Grosset’s cystic fibrosis had been exacerbated by the stress that he had been suffering, and that his deteriorating condition had caused him to make an error of judgment. The Tribunal accepted that Mr Grosset’s error of judgment was a “side effect of the stress caused, in significant part, by his cystic fibrosis” – the effect was circular: the more stress that Mr Grosset suffered the worse his condition became, and the worse his condition became the more he suffered from stress. The Tribunal also dismissed an argument by the School that Mr Grosset’s dismissal was justified by the need to safeguard children: the Tribunal accepted that the need to safeguard children was a legitimate policy but that the decision to dismiss Mr Grosset was not proportionate – the Tribunal considered that, given Mr Grosset’s unblemished disciplinary and performance record, a final written warning would have been appropriate in the circumstances.

With regards to the claim for failure to make reasonable adjustments, the Tribunal upheld this claim on the basis that two adjustments (sufficient notice of meetings and consultation over major changes) agreed with the previous head teacher had not been notified to Mr Crane when he started his job.

By a majority decision the Tribunal decided that Mr Grosset’s dismissal was fair: the School had undertaken a reasonable investigation, had based its decision to dismiss on the outcome of that investigation, had made a reasonable decision based on the facts before it, and had a genuine belief in Mr Grosset’s guilt.

Chris Hadrill, a partner in the Employment Department at Redmans, commented on the case: “This case reinforces that employers must ensure that there is continuity in place for disabled employees if there is a change of management, and must also ensure that the effects of a disabled employee’s condition are suitably taken into account in any disciplinary or capability process.”

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Clik here to view.In the case of Sarsembayev v KKMR Group Limited & anor (3200012/2016) the Employment Tribunal held that Mr Sarsembayev had been constructively dismissed and discriminated against, and that his wages had been unlawfully deducted. The Tribunal awarded Mr Sarmsembayev almost £60,000 as compensation for lost earnings, injury to feelings, and deductions from his wages.

Mr Sarsembayev, who is of Kazakhstani national origin, commenced employment for KKMR Group Limited (“KKMR”) as a Public Relations Officer on 8 September 2014. His line manager, and the owner of KKMR, was Timur Kim. Shortly after commencing employment with KKMR Mr Sarsembayev invested £4,500 in the company, with the understanding that he would receive shares in the company in return.

During the course of his employment Mr Sarsembayev alleged that he had been subjected to the following conduct:

• That in December 2014 Mr Kim made the following comment to him in the workplace: “You don’t get to teach me anything. You have to experience. You are from Kazakhstan. If you don’t like something, there’s the door!”
• That in December 2014 Mr Kim described a young black intern in the workplace, in front of Mr Sarsembayev, as “stinks like all black people”
• That from February 2015 to June 2015 Mr Kim described South Korean and Chinese interns at the workplace, in front of Mr Sarsembayev, as “stupid narrow-eyed Asians” and “I fucking hate Chinese”
• That in or around April 2015 Mr Kim described a student from India, at the workplace, in front of Mr Sarsembayev, as “corner shop girl”
• That in June 2015 Mr Kim told Mr Sarsembayev to “just fuck off then”
• That on July 2015 Mr Kim told Mr Sarsembayev “are you fucking mad?”
• That he had been regularly demeaned by Mr Kim during the course of his employment and that his work had been credited to other colleagues, and that he believed that this treatment was because he was not

Mr Sarsembayev also alleged that he had not at any point during the course of his employment with KKMR been paid any salary, and that he was not given any payslips. He believed that a collague, Mr Karapetyan, a colleague who was also Kazakh but of Russian heritage, was paid his salary, as Mr Karapetyan never complained that he had not been paid (whereas Mr Sarsembayev did complain that he had not been paid). Mr Sarsembayev also alleged that he had been racially abused by Mr Kim when he complained about not being paid.

As a result of Mr Kim’s conduct towards him Mr Sarsembayev resigned from his employment by way of email on 3 August 2015, stating that his resignation was at least in part because of “belittling opinions, public and professional humiliation”. He subsequently made claims against KKMR and Mr Kim for automatic unfair dismissal, direct race discrimination, race-related harassment, and unlawful deduction from wages. The case against Mr Kim settled shortly before the Employment Tribunal hearing but the claim proceeded against KKMR.

The Employment Tribunal found in Mr Sarsembayev’s favour in his claims for automatic unfair dismissal, direct race discrimination, race-related harassment, and unlawful deduction from wages, holding that KKMR had automatically dismissed Mr Sarsembayev (as he had resigned from his employment wholly or principally because of abuse he was given because he had complained about not being paid), that Mr Kim had directly discriminated against Mr Sarsembayev, that Mr Kim had racially harassed Mr Sarsembayev, and that Mr Sarsembayev’s wages had been unlawfully deducted (as he had not been paid since the commencement of his employment).

The Tribunal awarded Mr Sarsembayev a total of £63,564.56, comprised of the following sums:

• £17,926 as compensation for injury to feelings
• £27,080.01 as compensation for loss of earnings
• £18,528.55 in respect of the unlawful deductions from earnings

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Mr Sarsembayev has been awarded a substantial amount as compensation for his unfair dismissal and the discrimination that he suffered, and the Employment Tribunal was highly critical of the conduct of his employer. However, it is may be difficult for Mr Sarsembayev to enforce the totality of the award against his previous employer as the business is currently in liquidation, and Mr Sarsembayev will therefore only rank as a creditor (presumably one of many).”

The Employment Tribunal judgment in the case of Sarsembayev v KKMR Group Limited & anor can be found here.

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Clik here to view.In the case of Kinnear v Marley Enternit Ltd t/a Marley Contract Services S/4105271/16 the Employment Tribunal awarded a roof tiler £25,000 after his employer breached his contract of apprenticeship.

Mr Kinnear commenced his apprenticeship as a roof tiler with Marley Contract Services on 20 October 2014. Under his contract of apprenticeship his contract was due to last until at least November 2018.

In June 2016 Mr Kinnear was informed by Marley Contract Services that his employment would terminate on 17 June 2016, for the reason that there had been a downturn in the construction industry. He was therefore made redundant as of 17 June 2016. Mr Kinnear appealed against his dismissal but this was unsuccessful. He subsequently submitted an Employment Tribunal claim for breach of contract.

The Employment Tribunal found in Mr Kinnear’s favour in his claim for breach of contract, holding that he was entitled to be trained by Marley Contract Services until the apprenticeship finished in November 2018. He found that the company had paid no heed to Mr Kinnear’s status as an apprentice.

The Employment Tribunal awarded Mr Kinnear £25,000 as damages for the breach of contract (the maximum sum that the Employment Tribunal may award in a breach of contract claim), holding that he had taken reasonable steps to mitigate his loss (particularly given the poor labour market in the construction industry at the relevant times).

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers should be aware that apprentices have enhanced protection against dismissal, as compared to ordinary employees- for example, they cannot be dismissed by reason of redundancy in the usual way, unless there is a closure of the business or the employer’s business undergoes a fundamental change of character. If an employer is looking to terminate an apprentice’s contract then they ideally should obtain legal advice in order to ascertain their legal position. ”

The written reasons of the Employment Tribunal in this case can be found here.

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Clik here to view.In the case of Southgate v The Wilf Ford Family Trust ET/1800196/2016 the Employment Tribunal (“ET”) found that Ms Southgate had lied to the Employment Tribunal, that her conduct was unreasonable, and that she should have to pay the Trust’s costs to the sum of £12,500.

Ms Southgate made claims in the Employment Tribunal for unfair dismissal, wrongful dismissal, direct sex discrimination, harassment related to sex, and automatically unfair dismissal.

The Employment Tribunal was held last year and, under cross-examination, Ms Southgate changed her explanation of an email that was critical to her case. The Employment Tribunal held that Ms Southgate’s allegations were “clearly unsustainable at the hearing” and that Ms Southgate had been “clutching at straws because she had been caught out lying”. The Tribunal also held that Ms Southgate’s conduct during the case had been “scandalous” behaviour on her part, that she had not been honest, and that she was not a credible witness.

The Employment Tribunal dismissed all of Ms Southgate’s claims.

After the dismissal of Ms Southgate’s claims the Trust made an application for their costs of defending the claim, based on two arguments: 1) that Ms Southgate’s conduct in bringing and conduct proceedings had been unreasonable and 2) that the claim had no reasonable prospects of success. The Trust sought the payment of its costs of approx £50,000 in defending the claim.

The Employment Tribunal found in the Trust’s favour in its application for costs, holding that serious findings of fact had been made against Ms Southgate based on her conduct during the disciplinary process and at the hearing, that she had produced fabricated and false evidence, and that she had blamed the Trust for the false evidence when she knew she had created it. The Tribunal found that Ms Southgate’s unreasonable conduct warranted the Tribunal exercising its discretion to award costs in the case and that Ms Southgate should pay the Trust’s costs to the sum of £12,500.

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case shows that parties should be careful to be truthful and honest both prior to and during proceedings, lest the Tribunal exercise its discretion to award costs against the party that has not been found to be honest – successful costs applications are rare but the Tribunal statistics show that the incidence of costs orders is increasing.”

The decision of the Tribunal in Southgate v The Wilf Ford Family Trust can be found here.

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Clik here to view.In the case of Kuteh v Dartford & Gravesham NHS Trust ET/2302764/2016 the Employment Tribunal held that a nurse was fairly dismissed on allegations that she had engaged in inappropriate discussions with patients regarding religion.

The background facts in Kuteh v Dartford & Gravesham NHS Trust

Ms Kuteh, who is a committed, Christian, commenced her employment with the Trust as a registered nurse on 1 April 2017 and was promoted to the position of ‘Sister’ in 2012. In November 2015 she was transferred to a pre-assessment role which involved carrying out between six and twelve pre-assessment checks on patients who were due to undergo surgery. A standard checklist was used to carry out these checks, and this form included questions on the religion of the patient.

In March and April 2016 Ms Kuteh’s manager, Ms Putland, was informed that patients had complained to staff in the department that Ms Kuteh had been raising issues of religion and faith with them when going through the pre-assessment checks. In total, five patients complained in March and April 2016, and their complaints included that Ms Kuteh had “preached” to them and that one patient had been informed that if he prayed to God he would have a better chance of survival from surgery for cancer. Ms Putland informed the matron, Ms Gill, and on 11 April 2016 Ms Gill told Ms Kuteh that discussions with patients regarding their religion were inappropriate and should not take place in the future. Ms Kuteh assured Ms Gill that she would not discuss religion further with patients. However, two further complaints of a similar nature were made by patients in May 2016. Ms Gill was informed of these complaints and a disciplinary investigation meeting was arranged to take place. In the meantime, a further complaint was made by a patient on 20 June 2016 that Ms Kuteh had discussed religion with him.

On 30 June 2016 a meeting took place between the appointed investigator, Ms Shepherd, and Ms Kuteh. In that meeting Ms Kuteh accepted that she was aware that she had been instructed not to discuss religion with patients but that she felt that such an instruction was unreasonable, but she accepted that she could see how some patients may find discussions regarding religion to be inappropriate and admitted failing to follow reasonable management instructions. In her report Ms Shepherd recommended that the matter be progressed to a disciplinary hearing.

A disciplinary hearing took place in August 2016 and, by way of a letter dated 18 August 2016, Ms Kuteh was dismissed for failing to follow Ms Gill’s reasonable management instruction in April 2016, inappropriate conduct in discussing the topic of religion with patients, and breaching the nursing and midwifery code in expressing her personal beliefs to people in an inappropriate way. Ms Kuteh appealed that decision, with one of the grounds of appeal having been that she had not been given copies of the notes of the evidence of the patients who had complained. Ms Kuteh was not given permission to  but her appeal was dismissed.

Ms Kuteh brought a claim to the Employment Tribunal for unfair dismissal and, further, for a finding that her human rights had been breached (namely the right to freedom of thought, conscience, and religion under Article 9 of the European Convention on Human Rights).

The Employment Tribunal’s decision

The Employment Tribunal found that Ms Kuteh’s dismissal had been fair, as there had been a fair investigation into serious allegations and that there had been a fair hearing. The Tribunal also found that there was no necessity for Ms Shepherd to have interviewed, for the purposes of the disciplinary hearing, the patients who had complained and that there was no obligation for Ms Kuteh to have been provided with copies of the patients’ complaints. The Tribunal also found that the dismissing officer held an honest belief on reasonable grounds that Ms Kueth was guilty of the charges, and that the dismissal was therefore in the range of reasonable responses.

Our lawyers’ comments on the case

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case shows that employees should be careful when expressing personal opinions relating to religious or philosophical beliefs in the workplace – in some circumstances such personal opinions may be protected under discrimination legislation but, in other circumstances, as in this case, such expressions of personal opinion may lead to dismissal.”

The judgment of the Employment Tribunal in the case of Kuteh v Dartford & Gravesham NHS Trust can be found here.

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Clik here to view.In the first of a new series of posts, we examine a number of interesting Employment Tribunal judgments that were published between 17 April 2017 and 23 April 2017, including:

1. McDonnell v City of London Corporation (ET/2206629/2016) – the Employment Tribunal held that Ms McDonnell, a former employee of City of London Corporation, had been dismissed from her employment due to protected disclosures that she had made
2. Bvuure v Saffron Care Homes Limited (ET/3200903/2016) – the Employment Tribunal held that Ms Bvuure had not been constructively dismissed or discriminated against by her employer by the manner in which a grievance process was conducted
3. Kwai v The Governing Body of Morpeth School & anor (ET/3200660/16) – the Employment Tribunal held that Mr Kwai was fairly dismissed from his employment after the an incident involving a serious altercation between Mr Kwai and another staff member, the exchange of abusive and provocative language, and a fight whilst other staff and students were on school premises
4. Lawrence v Newlaw Legal Limited (ET/2300423/2016) – the Employment Tribunal held that a solicitor had been unfairly and wrongfully dismissed by her employer (due to a failure to carry out a fair investigation), but that reductions may be made to any award made to account for Polkey and contributory fault issues
5. Itoya v Indigo Park Services UK Limited – the Employment Tribunal held that Mr Itoya had not been constructively unfairly dismissed, harassed or discriminated against by immigration checks carried out or the grievance process undertaken
6. McFarlane & anor v Babcock Mission Critical Services Offshore Limited – the Employment Tribunal held that the claimants were not dismissed because they had made protected disclosures but because of a genuine redundancy situation
7. Collier v Graveney Trust – the Employment Tribunal held that an administrative officer at a school was fairly dismissed after there was an altercation between the administrative officer and a number of students

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Clik here to view.In the case of Thomas v Whitbread Group plc ET/3202395/13 the Employment Tribunal held that Mrs Thomas had been discriminated against by her employer Costa Coffee (which is owned by Whitbread Group plc) when the company failed to make reasonable adjustments for her post-natal depression.

Factual background of Thomas v Whitbread Group plc

Mrs Thomas worked as a store manager for Costa Coffee, a coffee shop owned by Whitbread Group plc. Mrs Thomas suffered from the disability of post-natal depression, which she had disclosed in her job application when applying for the position of store manager, and an occupational health therapist recommended when started at the company that she maintain regular contact with her supervisor (Ms Hudson) so that her condition could be monitored.

A number of inspections of Ms Thomas’ store were undertaken after she started employment, and the store’s performance was rated as unsatisfactory. Ms Hudson therefore informed Ms Thomas that she would be  subjected to disciplinary action. Ms Thomas subsequently raised a complaint against Ms Hudson, alleging that she had been bullied, harassed, and subjected to disability discrimination. Ms Hudson immediately suspended Mrs Thomas and undertook the disciplinary proceedings, which resulted in a final written warning for Mrs Thomas. Mrs Thomas’ grievance was not upheld.

After the conclusion of the disciplinary and grievance procedures Mrs Thornley took over supervising Mrs Thomas and continued to intensely monitor her, including often calling her on the telephone (which Mrs Thomas found stressful, due to her post-natal depression). Mrs Thomas then requested parental leave for a week from 2 April 2013, which Mrs Thornley rejected on the basis that there was no fully-trained assistance manager who could have run the Costa store in Mrs Thomas’ absence. Mrs Thomas continued to apply for parental leave but her applications were continually turned down; however, Mrs Thornley subsequently informed Mrs Thomas that she could take annual leave for a week from 2 April 2013 as a gesture of “goodwill”.

Mrs Thomas resigned from her employment and claimed constructive dismissal and disability discrimination.

The Employment Tribunal’s decision

The Employment Tribunal found that Mrs Thomas had been constructively dismissed because of the unfair decision to suspend her from her employment after she submitted her complaint and, further, because of the refusal to allow her to take parental leave. The Tribunal also found that Costa had failed to make reasonable adjustments for Mrs Thomas’ post-natal depression as there was a failure to regularly monitor her condition and her managers continued to contact her by telephone despite knowing this would cause her additional anxiety.

The Tribunal awarded Mrs Thomas substantial compensation, including £15,000 as compensation for injury to feelings.

Our lawyers’ comment on the case

Chris Hadrill, a specialist employment solicitor at Redmans Solicitors, commented on the case: “This case shows that employers must be careful when dealing with suspensions, and particularly so if an employee has previously made a complaint of discrimination. Failing to deal with disciplinary action in a fair and impartial way could lead to an Employment Tribunal claim against the business.”

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Clik here to view.In the first of our series of posts on ‘archived cases’, we take a look at the case of Griffin v Hyder Brothers Ltd ET/2406224/2011. In this case the Employment Tribunal held that employees spoke languages an employee could not understand (such as Punjabi and Urdu) in his presence did not constitute race-related harassment.

The facts in Griffin v Hyder Brothers Ltd

Mr Griffin worked as a supervisor at a petrol station, which was taken over by Hyder Brothers Ltd (run by a Mr Hyder) in June 2010. In the months after June 2010 Mr Griffin experienced a number of issues with his new employer, among them:

• That he believed he was being isolated and “sidelined” by Mr Hyder, with his belief that Mr Hyder wished to bring in a person named Ahmed to replace him
• That he believed he was being deliberately excluded when colleagues spoke Punjabi or Urbu (languages he did not understand) in his presence in the workplace

Mr Griffin subsequently brought (among others) claims for direct race discrimination and race-related harassment, arguing that the use of languages other than English in his presence constituted race-related harassment.

The Employment Tribunal’s decision

The Employment Tribunal dismissed Mr Griffin’s claims, holding that the use of languages that Mr Griffin could not understand in his presence did not constitute direct race discrimination or race-related harassment:

• Direct race discrimination: the Tribunal held that conversations in a language used to marginalize Mr Griffin could potentially be prohibited conduct under section 39(2) of the Equality Act 2010, but also held that the use of languages other than English was not intended to upset him or exclude him; the use of their first language was simply for the respective colleagues’ ease and convenience. The Tribunal held that there was therefore no detriment to Mr Griffin. Further, the Tribunal held that Mr Griffin had not been treated less favourably than his colleagues – the Tribunal held that individuals who spoke in their first language in front of Mr Griffin would have treated a colleague who was not of Mr Griffin’s race and/or nationality in the same way.
• Race-related harassment: the Tribunal held that, in speaking their first language, his colleagues did not have the intention of violating Mr Griffin’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. Further, the Tribunal held that the conduct of Mr Griffin’s colleagues could not reasonably be said to have created such an environment for him

Our solicitors’ comments

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Clik here to view.Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case is welcome news for employers, as it shows that the occasional (and natural) use of a shared first language that is not English by colleagues in the presence of English-speaking employees is unlikely to amount to discrimination.”

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Clik here to view.In the case of Mulla v Enigma Fashiions UK Limited & R Rajshakha ET/2601433/2016 the Employment Tribunal held that Ms Mulla had been discriminated against because of her pregnancy  and was awarded £55,963.58 as compensation.

The facts in Mulla v Enigma Fashiions UK Limited & R Rajshakha

Ms Mulla commenced employment with Enigma Fashiions UK Limited (“Enigma”) on 17 December 2009 and was both an employee and director of the company, along with Raj Rajshakha. In 2015 Ms Mulla discovered that she was pregnant but experienced a significant pregnancy-related illness, leading to her giving birth six weeks prior to the expected date of birth. Ms Mulla was required to spend two weeks in hospital as a result of the pregnancy-related illness.

Whilst Ms Mulla was in hospital her fellow director, Mr Rajshakha, sought to remove Ms Mulla as a director and employee of the company. Ms Mulla was told that the company was closing and returned early fro her maternity leave in order to determine the extent of the problems with the business; she was, however, denied access to the company’s premises three weeks after her return. Other employees of the business were also told not to speak to or contact Ms Mulla, and she was summoned to a disciplinary hearing on sham allegations.

As a result of Enigma and Mr Rajshakha’s conduct she resigned from her employment on 3 March 2016 and made claims for constructive unfair dismissal, pregnancy and maternity discrimination, and breach of contract.

The Employment Tribunal’s decision

The Employment Tribunal found that Mr Rajshakha’s conduct amounted to pregnancy and maternity discrimination as well as constructive unfair dismissal, and awarded Ms Mulla a basic award of £3,087.50, compensation for past and future loss of earnings £52,526.08, and damages for breach of contract of £4,055.  The Tribunal also found that the detriments that Ms Mulla had been subjected to fell within the ‘serious’ Vento band and awarded her compensation for injury to feelings of £10,000.

The Tribunal also awarded Ms Mulla a figure in respect of aggravated damages, as it found that a threat by the company to sue her for £300,000 in respect of company law issues (a threat which had not been followed through) constituted “high-handed, insulting and oppressive” conduct, as well as a campaign of text messages and letters (threatening disciplinary action for failing to respond to telephone calls and messages) which were sent to Ms Mulla by Enigma whilst she was recovering from giving birth.

Ms Mulla also made an application for her legal costs, which is due to be heard at a later date.

Our solicitors’ comments

Chris Hadrill, specialist employment at Redmans, commented on the case: “Employers should take care to ensure that they treat women who are pregnant or on maternity leave (or intend to take maternity leave) fairly. In this case the Tribunal found that the Claimant had been treated unfavourably because of her pregnancy and awarded her substantial compensation – this may, in part, be a Pyrrhic victory, however, as on Companies House Mulla v Enigma Fashiions UK Limited is in liquidation.”

The remedy judgment in Mulla v Enigma Fashiions UK Limited can be found here

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Clik here to view.In the latest of our series of posts examining cases from the Employment Tribunal archive, we take a look at the case of Callahan v Benchmark Cleaning Services Ltd ET/3200640/2013. In this case the Employment Tribunal found that a manager’s comments about an employee’s sexuality (including greeting the employee “hello darling” with a limp wrist gesture) constituted direct sexual orientation discrimination but did not constitute sexual orientation-related harassment.

The facts in Callahan v Benchmark Cleaning Services Ltd

Mr Callahan, who is homosexual, commenced employment with Benchmark Cleaning Services Limited (“Benchmark”) on 14 September 2011 at its open-plan London office. The company was owned by Mr Raji, who was also a director of Benchmark. Ms Smith was Mr Callahan’s line manager; Ms Smith’s manager was, in turn, Mr Raji.

Mr Callahan was open about his sexual orientation in the office and was viewed by colleagues as “domineering” and “highly confident”. Mr Callahan had a number of arguments with Mr Raji but Mr Raji viewed him as extremely competent at his job and as valuable to the team.

On one occasion Mr Raji gave staff gifts following a holiday in Dubai. Mr Raji gave Mr Callahan a pink key ring and a pen.

On several occasions Mr Raji made a “limp wrist hand gesture” and said “hello darling” to Mr Callahan. Mr Callahan’s position was that he originally viewed this as a joke but stopped seeing it as such as time passed.

On two occasions, in February and April 2012, Mr Raji made comments to the effect that he did not understand “why God had made homosexual men”, and that this was not “right or fair”. The context for one of these occasions was that there was a discussion between Mr Raji and Mr Callahan about religion, and that Mr Raji said that his church (the Pentecostal Church) did not accept homosexuality.

On 29 November 2013 Mr Callahan and Mr Raji had an argument about whether Mr Raji had put a comma or a full stop in a handwritten letter. As a result of this argument Mr Callahan resigned that day; Mr Raji gave him leaving present and Mr Callahan told Mr Raji that he had “no hard feelings”.

Mr Callahan subsequently made claims for direct sexual orientation discrimination and sexual orientation-related harassment.

The Employment Tribunal’s decision in Callahan v Benchmark Cleaning Services Ltd

The Employment Tribunal held that Mr Callahan had not been subjected to harassment on the grounds of his sexual orientation. The Tribunal found that the “hello darling” comment and limp wrist gesture were “humiliating” and Mr Raji’s comments about about God and homosexuals were “insulting”, and that both incidents constituted detrimental treatment towards Mr Callahan. However, the Tribunal found that Mr Raji’s conduct in both respects were not related to Mr Callahan’s homosexuality, finding that the “hello darling” comment was Mr Raji trying to be funny and, further, that the comments relating to God and homosexuality were made in the context of a discussion about religion. As such, Mr Raji’s conduct did not have the purpose of creating a prohibited environment for Mr Callahan and, further, the Tribunal found that the relevant conduct did not have the effect of creating a prohibited environment for Mr Callahan: the incidents were relatively isolated over a period of time and Mr Callahan otherwise appeared to be “happy and content in the workplace”.

The Tribunal did, however, conclude that Mr Raji’s conduct constituted direct discrimination: his conduct towards Mr Callahan constituted a detriment (as detailed above) and there was no evidence that Mr Raji ever made hand gestures to other staff, made fun of anyone else’s sexuality, or questioned why God had made heterosexual people.

The Employment Tribunal found in Mr Callahan’s favour in his claim for direct sexual orientation discrimination and awarded him £2,000 for injury to feelings.

Our solicitors’ comments

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case shows that it can often be difficult for employees to succeed with harassment claims if they have not submitted formal written complaints about conduct in the workplace that they subsequently rely on in Employment Tribunal proceedings as constituting incidents of harassment.”

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Clik here to view.In the latest of our series of posts on Employment Tribunal cases from the archives, we take a look at the Employment Tribunal claim of Dos Santos v Preview Services Ltd ET/2700170/10. In this case the Employment Tribunal held that one sexual remark did not, on the facts, constitute sexual harassment.

The facts in Dos Santos v Preview Services Ltd

Mrs Dos Santos worked at Preview Services Ltd as a document scanner from October 2007 to November 2009. During the course of her employment she raised certain complaints that she claimed were not properly addressed by the company, including a request to change her shift hours, that a supervisor had been “rude and patronising” to her, that she had been refused assistance by a member of the IT department, that she had asked for, and been refused, an unpaid leave of absence, and that a supervisor shouted at her in front of colleagues. The relevant supervisor subsequently apologised to Mrs Dos Santos

After the apology Mrs Dos Santos wrote a letter to management to thank them for following the grievance procedure and to accept the apology. She wished to give this letter to management by hand but did not have an envelope; she therefore approached a supervisor, Mr MacDonald, and said “can I ask you a favour?”, with the intention of asking for an envelope. Mr MacDonald replied “as long as it’s not a sexual favour”.

Mrs Dos Santos was offended by Mr MacDonald’s remark but did not complain at the time; she later stated that she did not complain as she didn’t want to be seen as a “troublemaker”.

The next week a manager at Preview Services Ltd asked Mrs Dos Santos to attend a capability meeting. This was the second capability meeting that Mrs Dos Santos had attended and it related to allegations that she had not been paying attention to her computer screen. She was taken ill shortly before the capability meeting and was subsequently signed off work sick.

A number of weeks later, after the capability process had been delayed by Mrs Dos Santos’ illness and a cancellation by a manager, Mrs Dos Santos submitted a number of complaints (including a complaint regarding Mr MacDonald’s comment). The manager at the capability proceeding refused to deal with the complaint at the capability hearing and stated that it should be dealt with in a separate grievance procedure. Mrs Dos Santos resigned the next day.

Mrs Dos Santos subsequently made an Employment Tribunal claim for constructive dismissal, sexual harassment, and direct sex discrimination.

The Employment Tribunal’s decision

The Employment Tribunal rejected all of Mrs Dos Santos’ claims.

With regards to her constructive dismissal claim, the Employment Tribunal held that Preview’s conduct had not been sufficient to constitute a repudiatory breach of her contract of employment; the Employment Tribunal in fact held that the company had “worked hard with her to meet almost every request she made” and had dealt with her complaints in a reasonable fashion. The Tribunal also found that the fact that she had not complained about Mr MacDonald’s conduct immediately meant that she could not have seen this as a sufficient reason for her resignation.

The Employment Tribunal also rejected Mrs Dos Santos’ sexual harassment and direct sex discrimination claims, holding that although Mr MacDonald’s remark was “possibly unwise”, the only way it could reasonably be viewed was as a joke between colleagues with a long-term professional relationship. The Tribunal held that Mrs Dos Santos’ reaction to the comment was excessive and that it was not, objectively, sufficient to constitute harassment.

Our solicitors’ comments

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This is a case which, of course, turns on its own particular facts: Mr MacDonald’s comment was, according to the Tribunal, on the ‘low end’ of the spectrum of offensive behaviour in the workplace and there was no aggravating conduct by Mr MacDonald (for example, further comments, a request for a sexual favour, or an obscene hand gesture). However, it is well-established that in the right circumstances a one-off act of unwanted sexual conduct can constitute sexual harassment.”

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Clik here to view.In the latest of our series of posts on Employment Tribunal cases from the archives, we examine the case of AM v GF and Balfour Beatty Rail Limited ET/3300089/10. In this case the Employment Tribunal found that a male employee ‘mooning’ a female employee in the workplace – a joke gone wrong – constituted sexual harassment.

The facts in AM v GF and Balfour Beatty Rail Limited

AM, as she was anonymised in the Tribunal’s judgment, worked as a receptionist at Balfour Beatty Rail Limited’s Ruislip depot. GF was a male colleague at the Ruislip depot with whom AM was on good terms, albeit GF worked in a different area in the depot.

On 7 October  2009 AM was talking with a colleague, Mr Cambridge, in the reception area when GF walked in, having just parked his car in front of a fire exit. AM pointed out to GF that his car was blocking a fire exit and that he shouldn’t do this again. There was then a conflict of accounts as to what happened next: AM said that she turned away to resume her conversation with Mr Cambridge but, upon turning back to GF, she saw that he had dropped his trousers, bent over with his hands on his knees, and was shaking his bottom; AM’s recollection was that she could see his whole bottom, including his anus, and a lot of flesh. She stated that she was shocked and turned her head away.

GF’s version of events was that AM had told him that “if you do that again I’ll slap your ass”, to which he replied “you’re having a laugh, what did you  say?”. AM then said “I’ll smack your ass”. He said that he then went o the side of the counter, two metres away from AM, and bared the top of his buttocks to AM saying “go on then” in a joking fashion.

AM then reported GF’s conduct to her line manager, Ms Beattie, and Ms Beattie advised that AM report the matter to the HR department. GF therefore approached the operations manager, Mr Lloyd, and proceeded to complain about the incident. Mr Lloyd noticed that AM was upset.

GF was subsequently dismissed on 20 October 2009 for gross misconduct after admitting that he had ‘mooned’ AM,  with the chairman of the disciplinary hearing finding that GF’s actions amounted to obscene behaviour in a public place.

The Employment Tribunal’s decisions

The Employment Tribunal preferred the evidence of AM as to what had occurred on 20 October 2009, noting that Mr Cambridge corroborated AM’s version of events. The Tribunal found that GF had bared the whole of his backside but that AM had not seen his genitalia (as this would have been impossible); the Tribunal did find, however, that AM may have perceived that she had seen GF’s genitalia. The Tribunal found, further, that AM had been upset by the incident, as recorded by a number of people that witnessed AM shortly after the incident occurred.

The Tribunal found that GF’s actions had amounted to sexual harassment: his conduct was unwanted by AM (despite the history of ‘banter’ between AM and GF), that the conduct was sexual in nature, and that it was reasonable to consider the conduct as having offended AM – she perceived it as offensive and complained about it immediately, showing signs of distress.

The Tribunal also found that Balfour Beatty Rail Limited was vicariously liable for GF’s conduct, as it had failed to take reasonably practicable steps to prevent GF (and other employees) from engaging in actions which resulted in other employees being discriminated against, harassed, or victimised.

The Employment Tribunal awarded GF £4,500 in damages for injury to feelings, with GF being ordered to pay £1,000 and Balfour Beatty Rail Limited ordered to pay £3,500.

Our solicitors’ comments

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case shows that a history of ‘banter’ between two employees will not prevent the Employment Tribunal from finding sexual conduct was ‘unwanted’ if it was entirely disproportionate to the nature of the ‘banter’ that had followed before.”