Victimisation and Dismissal

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The Problem

Every so often employers find themselves on the wrong end of an employee who has seemingly ‘gone off on one’. Perhaps the employee has lodged a string of grievances and complaints against his or her employer. Often those complaints have no substance and merit and employers resent having to spend the time dealing with them. For some employers, this issue becomes a ‘trust and confidence’ issue as was the case in Woodhouse v West North West Homes Leeds. In this case the employer dismissed Mr Woodhouse (a black employee) who, over a period of four years, had submitted ten internal grievances alleging race discrimination and brought seven employment tribunal claims.

It was noted that the claims were almost all found to be “empty allegations without any proper evidential basis or grounds for his suspicion”.

The Principle

No doubt tired of the time spent in dealing with Mr Woodhouse’s issues, the employer eventually dismissed him citing a breakdown in trust and confidence – this being a potentially fair reason to dismiss under the ‘some other substantial reason’ category.

Unsurprisingly Mr Woodhouse raised more complaints, not least the fact that he had allegedly been victimised by his employer pursuant to section 27(1) of Equality Act 2010. The employment tribunal held that Mr Woodhouse’s dismissal did not amount to victimisation. It noted that the employer would have dismissed any employee (regardless of race) who had brought a similar number of spurious grievances and claims. Unfortunately for the employer, the EAT disagreed with the tribunal. The grievances and tribunal claims were ‘protected acts’ and these acts were the reason Mr Woodhouse was dismissed.  There was no suggestion of bad faith (which would have prevented the grievances amounting to protected acts).  As a result, Mr Woodhouse had been victimised.

The Practice

It is difficult not to feel sympathy for the employer in this case but it flags up important issues. In the absence of bad faith, employers cannot dismiss an employee who makes serial but misguided complaints of (any sort of) discrimination. Therefore, when faced with tiresome employees, take care before dismissing. If there is any protected characteristic underlying the grievances/complaints/claims being made then any dismissal will need to be for a reason which is evidentially distant from such characteristic(s).

For more information, help or advice please contact Tim Davies on 0191 211 7927.