Cautionary Note for Employers – Victimisation

Sun, 15 Sep 2013

By Helen Barney

Helen Barney looks at the recent case of Woodhouse v West North West Homes Ltd 2013 UKEAT 0007_12_0506

The recent unreported decision of the EAT in Woodhouse v West North West Homes Ltd 2013 UKEAT 0007_12_0506 is likely to limit the extent to which employers can draw a parallel with the case of Martin v Devonshire Solicitors [2011] ICR 352 when dealing with serial complainants/litigants on a proscribed ground.

Facts

The Appellant had pursued some ten grievances and submitted nine Tribunal applications over a period of five years of employment, complaining of direct discrimination, harassment and victimisation.  The Respondent dismissed the Appellant on grounds that the relationship had “irretrievably broken down and trust and confidence no longer exists between the parties.”

The Tribunal found in favour of the Appellant in respect of his first grievance and noted a degree of substance to his second.  Grievances 3-10 were rejected by the Tribunal and described as "ill-founded grievances … substantially without any evidential basis", "unfounded grievances" and "objectively demonstrated to be false". The Tribunal concluded that the decision to suspend and dismiss the Appellant was not tainted by victimisation. 

The Tribunal found inter alia “that a comparable employee, who had evinced similar profound and long-standing lack of faith by submitting similarly ill-founded grievances, but without any racial connotation, would have been similarly treated.”

Appeal

Two principal areas of legal significance arise from the EAT’s Judgment:

1)            Confirmation that under the Equality Act 2010 section 27 there is no longer a requirement, as there was under previous equality legislation, for a Claimant to show that his or her treatment was less favourable than that which would have been afforded to a comparator. The test is simply now one of detriment and ”because of” a protected act. The Tribunal had erred in adopting a comparative approach.

2)            The findings of fact detailed above in respect of the Claimant’s grievances were not capable of amounting to “genuinely separable features” from the making of the complaint itself.  Accordingly, the EAT substituted a finding that the Appellant had been victimised by his suspension and dismissal. Judge Hand Q.C. added the following note of caution to the Judgment in Martin as follows:

“In our judgment, Martin cannot be regarded as some sort of template into which the facts of cases of alleged victimisation can be fitted. There are no doubt exceptional cases where protected acts have not caused the dismissal or whatever other detriment is at issue. Martin is an example of such an exceptional case. But we emphasise the word exceptional; very few cases will have grievances based on paranoid delusions about events that never happened. It seems to us the process of measuring cases against such a yardstick is a dangerous one. One person's conviction that they have been discriminated against is very likely to generate the polar opposite, i.e. that the complainant is irrational, in the person or organisation complained about. Experience of this type of litigation teaches that grievances multiply and so the fact that here are a series of them is not unusual. 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 EA. All the more so when the origin of the problem is established, as here, to have been a real, as opposed to imaginary, race discrimination.”

Comment

Certainly at first tier level Tribunals had, in my experience, been receptive to the Martin distinction when addressing the thorny issue of what an employer can do when faced with serial, time-consuming and wholly unjustified complaints of discrimination. However, such empathy is likely to shift in view of Judge Hand Q.C’s firm steer.

Not all is lost for employers faced with such a difficult situation.  At paragraph 98 of the Judgment Judge Hand Q.C. recognises that conduct/behaviour might be one genuinely separable feature from the making of the complaint itself.  Examples where conduct in bringing the complaint has been upheld as not amounting to victimisation can be found in the cases of HM Prison Service v Ibimidun [2008] IRLR 940 (dismissal of an employee not related to the bringing of his race discrimination claim, but to the way in which that claim was pursued, to include unreasonable allegations designed to harass the employer into settlement) and Re York Truck Equipment EAT/109/88.

Some, albeit small, comfort can also be gleaned from section 27(3) of the Equality Act 2010 that disapplies victimisation in cases of “false evidence or information or making a false accusation…made in bad faith”. 

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