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Case Law

What amounts to victimisation?

Is it victimisation if an employer dismisses an employee who has raised numerous grievances and brought numerous tribunal claims against his employer? ‘Yes’ said the Employment Appeal Tribunal (‘the EAT’) in this case.

Woodhouse v West North West Homes Leeds Limited [UKEAT/0007/12]

Background

Under the Equality Act 2010 an employer may be guilty of unlawful victimisation if it dismisses an employee or subjects him or her to a detriment because the employee has done or may do a ‘protected act’. ‘Protected act’ includes alleging discrimination and bringing employment tribunal proceedings for discrimination.

The facts

The background facts to this case span a number of years. It included nine grievances and nine employment tribunal claims over that period.

In summary, the claimant, Mr Woodhouse, was employed by the respondent, West North West Homes Leeds Limited (West North West), which managed housing for Leeds City Council (the Council).

In 2003 Mr Woodhouse raised a grievance that his manager had not given him adequate support following an allegation by Mr Woodhouse that an employee of the Council had made a racist remark to him. Mr Woodhouse also alleged that his manager had a racist attitude. There then followed a series of appeals and grievances against the conclusions and persons involved in the process, which included allegations of discrimination.

In 2010 Mr Woodhouse was invited to attend a meeting with West North West. Following the meeting he was dismissed.  West North West considered that Mr Woodhouse had lost all trust and confidence in them and there could not be a sustainable working relationship going forward.

The final employment tribunal claim by Mr Woodhouse was that he had been unfairly dismissed and that, by dismissing him, West North West had also victimised him.

The decision

The employment tribunal was happy that Mr Woodhouse had been unfairly dismissed but rejected his claims of discrimination and victimisation.

The employment tribunal commented that Mr Woodhouse’s first two grievances had some substance.  The grievances that followed were ‘ill-founded … substantially without any evidential basis … unfounded’ and ‘objectively demonstrated to be false’.

The tribunal considered that the reason for the dismissal was some other substantial reason but it was unfair because West North West had not warned Mr Woodhouse that if he continued to raise grievances he risked being dismissed. The employment tribunal decided that Mr Woodhouse had been dismissed because the working relationship with the respondent had broken down and not because he had made allegations of race discrimination.

Mr Woodhouse appealed to the EAT.

The EAT appeal

The EAT found that Mr Woodhouse’s dismissal was because he had raised a number of complaints and claims of race discrimination and this was victimisation.

The EAT commented that it was ‘a slippery slope towards neutering the concept of victimisation if the irrationality and multiplicity of grievances would lead … to the case being … outside the scope of’ unlawful victimisation.

In practice

This is a disappointing case for employers. We know that repeated and cyclic grievances are not uncommon. We also know that it is tempting to break the cycle by dismissing the employee. This case highlights the risk that dismissing may mean that you are victimising the employee. Other action, for example, transferring the employee is also likely to be victimisation on the basis of this case (although the case of Burrell suggests otherwise – see Covert surveillance during sickness absence).

So how will you deal with the situation? It may be that the only possible way to resolve the problems highlighted in this case is to enter into a settlement agreement (the new name for compromise agreements from 29 July 2013). At Quantrills we can help you deal with the problematic employee and guide you through to a safe resolution.

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