In the employment tribunals: March 2011

XpertHR provides summaries of recent employment tribunal rulings. 

Abusive Facebook comments led to pub shift manager’s dismissal
Employer wrong to rely on employee's "flippant" attitude during disciplinary hearing
Muslim boss discriminated against Muslim employee of different Islamic sect
Employee entitled to believe supervisor had authority to dismiss
Care worker wins sex discrimination claim over failure to provide references
Manager’s "sexual favours" remark was not sexual harassment
Football officials suffered age discrimination
Crashing ferry constituted gross misconduct
Childcare emergency resulted in detriment and dismissal
Solicitor harassed by firm manager’s offensive behaviour
Bannatyne fitness club discriminated against Thalidomide victim
Employees were not entitled to be accompanied at investigation meetings
Employee fairly dismissed for sabotaging hidden microphones
“Full-blown moony” constituted sex harassment

Note: The decisions are not binding on other tribunals and are intended to provide illustrations for employers of situations that have led to tribunal claims. They are reported on XpertHR as soon as the transcript becomes publicly available, which is normally four to six weeks after the judgment has been made. 

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Abusive Facebook comments led to pub shift manager’s dismissal

Preece v JD Wetherspoons plc ET/2104806/10

Date added: 31 March 2011

unfair dismissal | gross misconduct | social media | employer's reputation

In this case, an employee’s inappropriate use of Facebook after a workplace incident led to her summary dismissal. 

Miss Preece was employed by JD Wetherspoons plc as a shift manager, working at the company’s Ferry Boat Pub in Runcorn, Cheshire. She was aware of the company’s policies regarding “blogging”, which expressly referred to sites such as MySpace and Facebook. The policies stated that employees should not write or contribute to a blog, including Facebook, where the content lowers the reputation of the company or its customers, and the company reserved the right to take disciplinary action where this occurred. Miss Preece was also aware that, if an emergency situation arose when she was acting manager, she could ring a hotline number and access the support of a pub manager at any time. 

On 24 May 2010, Miss Preece and a colleague, Mr Ainsworth, were subjected to “a shocking torrent of verbal abuse and physical threats” by a group of people, particularly two customers known as Brian and Sandra. Miss Preece was threatened with a cane and, as a result of their behaviour, asked Brian and Sandra to leave the pub. It was acknowledged at the tribunal hearing that Miss Preece dealt with the situation professionally and correctly. 

In the early evening, Mr Ainsworth took what turned out to be the first of four telephone calls from someone he believed to be Brian and Sandra’s daughter:

• In the first call, Miss Preece was told: “Get your fucking P45 ready because you’re out of here”. 
• In the second call, Mr Ainsworth was asked to “put that slag of a manager on the phone”.  After Miss Preece took the call, she was called a “snide bitch” and abused further. 
• In the third call, Miss Preece was called a “whore” and to “get her P45 ready”. 

Mr Ainsworth did not pass the fourth call to Miss Preece, or tell her about it (until after her investigation meeting), on the basis that it was likely to follow the same pattern of abuse. During this call, the woman was threatening, stating: “Tell that fat fucking slag of a manager I know where she works, what car she drives and tell her to watch her back the snide fucking bitch”. 

Around 6.30pm, Miss Preece began a Facebook discussion by making an entry that consisted of the words “fuck off, fuck off, fuck off”. A discourse took place between her and several work colleagues that included a discussion of the events with Brian and Sandra earlier that day. At one point, Miss Preece wrote, in reference to Sandra: “Fucking hag! Hope her hip breaks”. She later named the customers by posting, “Sandra and Brian barred ha ha ha!” At this point, the two customers had not been barred, merely asked to leave the pub. Miss Preece was on duty throughout the entire Facebook discussion, and at no point did she use the company’s facility to contact a manager using the hotline provided. 

On 7 June 2010, the company received a complaint from Leslie Roach (Sandra and Brian’s daughter) about Miss Preece’s Facebook entries of 24 May 2010. Ms Roach was concerned about the “offensive comments”, which had been made public, and that Miss Preece hoped that her mother’s hip would break. The company began an investigation, during which Miss Preece admitted that her actions were in breach of company policy. However, she argued that her privacy settings meant that her Facebook messages would have been seen only by between a maximum of 40 to 50 close friends, rather than all her friends, which numbered 646 in total. She also stated, in mitigation, that she had been subjected to three abusive telephone calls (at this stage not knowing about the fourth). 

A disciplinary hearing was held in respect of allegations that Miss Preece had failed to comply with company policy and had lowered the reputation of the organisation, and that her actions had led to a fundamental breakdown in trust and confidence. Miss Preece conceded that her actions were not acceptable, and she was dismissed for gross misconduct. She appealed on the basis that the mitigating factors she had put forward, namely that she had been under “severe pressure and provocation” were not given consideration, and that she had not mentioned the company or the name of the pub in her entries. The appeal officer upheld the original decision. He was clear that the Facebook comments were identifiable as being about work, and that they were not as secure as Miss Preece claimed, given that they had been picked up by a customer. Miss Preece claimed unfair dismissal. 

The tribunal found that the company genuinely believed that Miss Preece had committed an act of gross misconduct, and that it had reasonable grounds on which to do so. It also found that the company had carried out as much investigation into the matter as was reasonable in all the circumstances. The tribunal was surprised that the company had not addressed the part played by the other employees involved in the workplace discussion. However, Miss Preece did not raise, either at her disciplinary hearing or on appeal, the issue of her colleagues not being investigated or disciplined. The tribunal also found that only one of these colleagues had posted an abusive comment (that Sandra was a “moaning old hag”), whereas Miss Preece’s communications were clearly abusive. 

The tribunal found that Miss Preece’s Facebook activities were, regardless of her belief about the privacy of her communications, in the public domain. The tribunal stated that, under the European Convention on Human Rights, Miss Preece has the right to freedom of expression, but the company’s actions were justified in view of the risk of damage to its reputation. The tribunal also found that the disciplinary and appeal officers had taken Miss Preece’s mitigation arguments into account, and that her Facebook entries did not reflect her upset and anger at the situation, citing the fact that the discussion took place over a lengthy period of time and well after matters had calmed down. 

The tribunal stated that, although this was a case where it may have been more inclined to award a final written warning to Miss Preece than dismiss her, that opinion was irrelevant for the purposes of deciding her unfair dismissal claim. It found that Miss Preece had been fairly dismissed. 

Additional resources

• Policy on social networking websites Use this model policy within the company's internet policy or staff handbook to set out the accepted use of social networking websites. 
• How to deal with an employee who has posted negative comments about the organisation on a social networking site With the growing popularity of social and business networking sites such as Twitter, Facebook and MySpace, employers are increasingly finding that employees are turning to such sites to air grievances about their employer and colleagues. 

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Employer wrong to rely on employee's "flippant" attitude during disciplinary hearing

Hopkins v Kosher Deli UK Ltd ET/3302741/09

Date added: 30 March 2011

unfair dismissal | misconduct | theft

In this case, the employment tribunal held that an employer placed too much emphasis on an employee's "flippant" and "sarcastic" attitude during a disciplinary hearing and failed properly to consider the flaws in the evidence against him. 

Mr Hopkins was a long-serving manager for a family-run producer of kosher meat products that employed about 50 people. In January 2009, a manager, Mr Kadoch, had caught red-handed another employee, Mr Sullivan, taking meat from the store, but Mr Sullivan had said that he was on occasion asked by "the governor" (referring to the claimant, Mr Hopkins) to deliver the meat to the claimant's home address. Mr Sullivan apologised and was warned by the manager not to do it again. 

In May 2009, Mr Kadoch saw Mr Sullivan leaving the shop with two bags of meat and challenged him. Mr Sullivan had "appeared worried" and said that they were for Mr Hopkins. Mr Kadoch took the bags back and valued them at about £100. 

Mr Sullivan was given a final warning because of the remorse that he had shown, but Mr Hopkins was called to a disciplinary hearing. From the evidence that Mr Sullivan gave to the employer, other allegations against Mr Hopkins were added to the disciplinary proceedings. It was alleged that Mr Hopkins was in the habit of asking Mr Sullivan to run errands for him during working hours and had instructed him to help Mr Hopkins to move house using a company van. 

During the disciplinary hearing, Mr Hopkins denied giving Mr Sullivan instructions to take meat for him. He admitted that he had sometimes telephoned Mr Sullivan early in the morning to ask him to buy milk and cigarettes on his way to work. Mr Hopkins denied that Mr Sullivan helped him to move house. Mr Sullivan did not appear in person at the disciplinary hearing. 

The hearing chair, Mr Bendahan, put it to Mr Hopkins that the company's vehicle tracking records had shown that Mr Sullivan had taken a company van to Mr Hopkins' home on several occasions. These records had not been shown to Mr Hopkins prior to the disciplinary hearing, but he responded (sarcastically, he later admitted) that Mr Sullivan "might have called to have tea with his girlfriend as they were acquainted". Mr Hopkins advanced the theory that Mr Sullivan might have given his name when he was caught in May 2009 because he had done so in January 2009 without subsequently receiving a disciplinary sanction for that theft. 

Mr Bendahan looked at the tracking records covering several days in April 2009 (just before Mr Sullivan was caught for the second time), which showed that a company van had called at Mr Hopkins' house on four occasions, sometimes for periods as short as two minutes. Two of the calls had no drivers' names against them; one had the named driver as "Paul"; and one showed the driver to be "Fiona". Mr Bendahan did not cross-reference the times of the calls with Mr Hopkins' swipe-card records to see if he was at work at the time. 

Despite the lack of evidence from the vehicle tracking records, Mr Bendahan made the decision to dismiss Mr Hopkins. He was not impressed by Mr Hopkins' demeanour, which he found to be casual. He found Mr Hopkins' assertion that Mr Sullivan might have been calling to have tea at his house to be flippant and observed that he had made no significant attempts to defend himself. 

Mr Bendahan took into account that Mr Sullivan had handled the company's money for some years without any discrepancies and inferred that he must be trustworthy. Mr Bendahan did not consider Mr Hopkins' long length of service and fine disciplinary record. 

Mr Hopkins' appeal was heard by another manager, Mrs Klein. She later admitted before the tribunal that she had discussed the case with colleagues, including Mr Bendahan, on a number of occasions. Her estimate was that there were about 20 discussions on the subject. In his appeal, Mr Hopkins concentrated on:

• the flaws in the tracking records evidence, particularly that they showed calls at his house while he was at work;
• Mr Sullivan's lack of credibility as an admitted thief; and
• his own long and good record. 

Mrs Klein dismissed the appeal because she felt that Mr Hopkins lacked credibility, although by this stage the reliance on the tracking records as evidence had been dropped. 

The employment tribunal found that Mr Hopkins had been unfairly dismissed. Two issues took the employer's decision to dismiss on the evidence available outside the range of reasonable responses. First, as conceded by the employer, it was clear to the tribunal that the tracking records were unreliable. Mr Bendahan took them into account as corroborating evidence when dismissing Mr Hopkins. 

Second, Mr Bendahan was unduly influenced by the claimant's "flippant" and "sarcastic" remark during the disciplinary hearing. He had formed the purely subjective view that Mr Hopkins was not taking the proceedings seriously and was not sufficiently contrite. The tribunal pointed out that, if Mr Hopkins was innocent, he would not have to show remorse, yet this was a factor that weighed heavily with Mr Bendahan. 

The tribunal was also critical of the employer for:

• not providing Mr Hopkins with copies of the disputed vehicle tracking records in advance of the disciplinary hearing;
• not requiring Mr Sullivan, on whose word the case against Mr Hopkins almost solely rested, to attend the disciplinary hearing; and
• entrusting the appeal hearing to Mrs Klein, who was not able to come to the issues of the case with an unprejudiced mind. 

Finally, the employment tribunal did not consider that Mr Hopkins' unfair dismissal compensation should be reduced because of his flippant remark at the disciplinary hearing. His remark did not make him blameworthy for his own dismissal. 

Additional resources

• How far should an employer go in investigating a disciplinary issue? Most employers will be aware that, to justify a misconduct dismissal, an employer must have an honest belief in the employee's guilt, based on reasonable grounds, following as much investigation into the issue as was reasonable in the circumstances. As consultant editor Darren Newman explains, the issue of just what a "reasonable" investigation looks like was reopened in the case of Salford Royal NHS Foundation Trust v Roldan. 
• Good practice guide on conducting disciplinary investigations A fair investigation to gather all the relevant facts provides the backbone of a fair misconduct dismissal. 

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Muslim boss discriminated against Muslim employee of different Islamic sect

Majeed v Rahman v t/a Haji Halal Meat ET/2330024/10

Date added: 29 March 2011

religion or belief discrimination | refusal to change beliefs | dismissal

The employment tribunal in this case found that the owner of a small business discriminated against an employee who was dismissed after he refused to convert to the owner's sect of Islam. 

Mr Majeed, who worked for a halal butcher in Tooting in London, brought claims for unfair dismissal, religion or belief discrimination and failure to provide notice pay. 

The claimant gave evidence that he worked 72 hours per week (six days per week from 8am to 8pm) and was paid £290 in cash each Sunday. He said that he was dismissed by the shop's owner, Azizur Rahman, because he had refused to convert from being an Ahmadiyya Muslim to being a Sunni Muslim, which is the form of Islam to which the Rahman family subscribes. 

According to Mr Majeed, Azizur Rahman invited him on various occasions to attend Sunni Muslim conferences at the Tooting Islamic centre. On 28 March 2010, Azizur Rahman had invited him again to the conference to "learn the real truth", but he declined. Mr Majeed had the next day off, but was telephoned by his boss in the morning and asked to meet him at a restaurant near the shop. 

Mr Majeed said that he had been told at the meeting that he should convert and that five people had converted the previous day. The claimant refused, but was pressed to reconsider because it had been agreed at the Sunni Muslim conference that Ahmadiyya Muslims should no longer be employed by members of that sect and Sunni Muslims should no longer patronise a nearby shop run by an Ahmadiyya Muslim. 

At the meeting, Azizur Rahman referred to pressure being placed on him by the head of the Sunni sect, who had helped his children to gain admission into the family's preferred schools. Mr Majeed asked for notice pay at the meeting and did not work for Azizur Rahman again. 

The employment tribunal heard evidence for the employer from an individual whom it referred to as "Mr X" throughout the hearing. Mr X purported to be Azizur Rahman, but the tribunal had strong suspicions that Mr X was in fact Azizur Rahman's younger brother, Najib Rahman. Mr Majeed was "absolutely adamant" that Mr X was the family's younger brother. 

The tribunal expressed surprise that Mr X was very quick to produce a passport in the name of Azizur Rahman when challenged about his identity (it asked why had he considered it necessary to bring his passport to the tribunal). In any case, the tribunal could not tell from the passport photograph whether or not it was that of Azizur Rahman. The photograph appeared to be of a considerably younger man who was clean shaven (Mr X had a beard). Mr X was wooly on the details of a pilgrimage that Azizur Rahman was known to have gone on and that the tribunal understood to be a major event in the religious life of a Muslim. 

Mr X's evidence was that he and Mr Majeed never discussed religion, and that he had never suggested that Mr Majeed should become a Sunni Muslim or attend an Islamic conference. Mr X denied that he had gone to the restaurant for the final meeting with Mr Majeed and said that, although he had originally employed the claimant, he had not dismissed him. Mr X suggested that the claimant had simply left employment a few months earlier by going on "unauthorised absence". 

The employment tribunal preferred Mr Majeed's evidence because of the "numerous clear contradictions" in Mr X's evidence. The tribunal could find no logical reason why the claimant would have absented himself from his steady job without warning and made up a story before an employment tribunal to cover himself. The tribunal also rejected any suggestion that Mr Majeed had "some religious reason" to seek a finding from the tribunal against a Sunni Muslim. 

The tribunal believed that Mr X had lied about his identity and he was in fact the family's younger brother, Najib Rahman. It noted that it is a "very serious matter" for an employment tribunal to make a finding that a witness is not the person he or she purports to be. 

The employment tribunal upheld the claims of unfair dismissal and religion or belief discrimination. Mr Majeed had been dismissed because he had refused to bow to pressure to convert to being a Sunni Muslim and because this conversion was a condition of his continued employment. Mr Majeed was also awarded two weeks' notice pay. 

Additional resources

• Chondol v Liverpool City Council EAT/0298/08 and Power v Greater Manchester Police Authority EAT/0087/10 These cases look at the position where individuals are accused of inappropriately promoting their religious beliefs on others, for example customers and colleagues. 
• Good practice: Religion and belief This section of the XpertHR good practice manual considers the key issues associated with religion and belief in the workplace and identifies the steps that employers can take to address these issues fairly, while supporting the needs of the business. 

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Employee entitled to believe supervisor had authority to dismiss

Piroska v Total Support Services Ltd ET/2351123/10

Date added: 24 March 2011

unfair dismissal | authority to dismiss

This case concerns whether or not an employee was entitled to consider that his supervisor had sufficient authority to dismiss him. 

Mr Piroska was employed by Total Support Services Ltd, which is a cleaning company, working for a client in Guildford. He started work in February 2008 and was inducted by his supervisor. Prior to the events that resulted in him leaving the company, Mr Piroska had not met its operations manager (Mr Gostt), and had a very limited relationship with his area manager. His relationship with his employer was limited to his relationship with his supervisor, from whom he received his work instructions. 

On 16 July 2010, an incident occurred. Mr Piroska’s evidence was that he was criticised by his supervisor for working too slowly and taking unauthorised breaks, and that his supervisor told him “you’re fired” and/or “don’t come back”. Mr Gostt’s evidence was that the supervisor had told Mr Piroska to go home and not come back. The company issued Mr Piroska with his P45 on 2 August 2010, although its evidence was that no one had made a conscious decision to do this. 

Mr Piroska sent the company a letter of appeal against what he considered to be his dismissal. The company, not viewing Mr Piroska as having been dismissed, treated the letter as a grievance. Mr Gostt met with Mr Piroska on 21 September 2010 to discuss the matter, and asked him to provide a quantified request for compensation. However, after the meeting, Mr Gostt decided that compensation was not appropriate, and wrote to inform Mr Piroska of this, also stating that he was welcome to come back to work immediately. 

Mr Piroska spoke to his supervisor about returning to work, and the supervisor spoke to Mr Gostt. Following this discussion, the supervisor told Mr Piroska that the company was only able to offer him hours that were different from his previous hours. Mr Piroska was not prepared to accept these hours, and did not reply to a letter from the company asking him whether or not he wished to return to work. He claimed unfair dismissal. 

At the hearing, the company’s defence was that only authorised parties can terminate a contract of employment: Mr Piroska’s supervisor was not so authorised, and Mr Piroska was aware of this. It argued that Mr Piroska had terminated his contract of his own accord, after being sent home temporarily by his supervisor after an argument. 

The tribunal found that the words “you’re fired” and/or “don’t come back” were unambiguous words of dismissal, and considered whether or not there were any circumstances that would permit it to go beyond these words, and consider the surrounding circumstances. The tribunal considered that, if Mr Piroska knew that his supervisor did not have the authority to dismiss him, this would constitute relevant circumstances to be considered. 

The tribunal noted that the company had nothing in writing about who did and did not have the authority to dismiss, and provided no documentary evidence on this point. It also noted that Mr Piroska’s evidence that he was not aware of any previous dismissals that might have indicated who did or did not have authority to dismiss was unchallenged. The supervisor was the person who inducted the claimant. Mr Piroska had never met the person who - on the company’s case - had the authority to dismiss (Mr Gostt). Further, Mr Piroska had nothing more than a distant relationship with his area manager. 

Taking everything into account, the tribunal did not find that circumstances permitted it to disregard the unambiguous words of dismissal. It found that Mr Piroska genuinely believed that his supervisor had the authority to dismiss, and found that it was reasonable of him to hold that belief. The tribunal held that Mr Piroska had been dismissed, and found that there were no grounds on which it could conclude that, had the company followed a fair procedure, it would have been a position to dismiss fairly. The company had followed no dismissal procedure, and the tribunal held that Mr Piroska had been unfairly dismissed. 

Additional resources

• How to deal with situations where it is unclear whether a dismissal or resignation has taken place Deal with incidents like the one in this tribunal case with our "how to" guide. 
• Get more information on unfair dismissal in the XpertHR FAQs section:
  • How does a tribunal gauge whether an employee has been unfairly dismissed on the basis of misconduct?
  • Once a claim for unfair dismissal is brought what must an employer do to defend its actions?
  • Can an employee claim unfair dismissal if he or she has resigned?

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Care worker wins sex discrimination claim over failure to provide references

Wilson v Provincial Care Services Agency and others NIIT/00431/10

Date added: 23 March 2011

sex discrimination | pregnancy discrimination | references

In this case, the industrial tribunal in Northern Ireland ordered a care worker's former employer to pay her £9,500 for sex discrimination after it failed to provide her with a reference. 

Mrs Wilson worked for Provincial Care Services Agency, which provides domiciliary healthcare to the elderly and the ill, from August 2007 until her resignation in September 2009. She had a good record with her employer. 

In June 2008, Mrs Wilson discovered that she was pregnant. She commenced maternity leave in December 2008 and returned to work in August 2009. However, around September 2009, her childcare arrangement unexpectedly fell through and she spoke to Mrs Fitzpatrick, an area and quality control manager, to ask if she could move from day to evening shifts. She was offered a shift rotation that began at 6pm. This arrangement did not suit Mrs Wilson, as her husband did not finish work until 6pm. 

As a consequence, Mrs Wilson resigned with immediate effect on 8 September 2009. She was required under her contract of employment to work four weeks' notice. Mrs Wilson alleged that, when she told Mrs Fitzpatrick that she was going to have to resign, the response was that "this is what happens when you have babies". 

Following her resignation, Mrs Wilson immediately began to look for alternative work and registered with a nursing agency, Jark Healthcare, in October 2009. She was offered a position subject to a satisfactory reference from Provincial Care Services Agency, which is something required by law in Northern Ireland before an individual can take up employment in domiciliary healthcare. Mrs Wilson's contract of employment also obliged Provincial Care Services Agency to provide her with a reference. 

Contrary to the purpose of the legislation, Provincial Care Services Agency has a policy of declining to provide anything other than a written factual reference in respect of its ex-employees and provides a factual reference only after a face-to-face interview. Despite this policy for outgoing staff, it insists on a full reference from incoming recruits. 

In October and November 2009, Mrs Wilson made various unsuccessful attempts by telephone and fax and in writing to speak to her former line manager, Mrs Byrne. Mrs Maguire, who worked for the nursing agency Jark Healthcare also failed in her attempts to get a response from Mrs Wilson's former employer. They did speak to Mrs Corbett, a supervisor at Provincial Care Services Agency, but she was not authorised to provide references. 

Following two months of unsuccessful attempts to secure a reference, Jark Healthcare indicated to Mrs Wilson that it could not offer her employment. Mrs Wilson was also prevented from securing employment with another healthcare provider, Faith House. She successfully interviewed for a position with Faith House and was offered a job subject to references. 

Mrs Wilson finally succeeded in speaking to Mrs Fitzpatrick on 10 December 2009. Mrs Wilson claimed that she explained her requirement for a reference and was told that "she was the big girl who wanted a baby and did not want to work". 

On 4 January 2010, Mrs Wilson visited her former employer's offices and spoke to Mrs Byrne. On that date, Provincial Care Services Agency did send a factual reference to Faith House, but this was not sufficient to satisfy the requirements of Faith House under the legislation and the offer of employment was withdrawn. 

Mrs Wilson eventually secured employment commencing in April 2010, after explaining to the prospective employer the problems that she was encountering regarding a reference, and claimed sex discrimination. 

The industrial tribunal accepted the evidence of Mrs Wilson (whom it found to be straightforward and consistent) that Mrs Fitzpatrick (whom it found to be evasive and argumentative) had made the comments that "this is what happens when you have babies" (when she resigned) and "she was the big girl who wanted a baby and did not want to work" (when she tried to get a reference). The tribunal also found Mrs Byrne’s evidence to be "not consistent and in some instances not credible". 

The tribunal held that the employer's policy of providing only factual references was universally applied, so its decision not to provide Mrs Wilson with a full reference was not related to her pregnancy or maternity leave. However, the tribunal went on to express its concern that such a policy is contrary to the purpose of the domiciliary healthcare legislation and is inconsistent with the employer's own policy on recruitment. The tribunal held that the delay in providing Mrs Wilson with any sort of reference was related to the fact that she had a baby and the childcare responsibilities that came with that. It took particular account of Mrs Fitzpatrick's two comments and the "numerous contradictions and inconsistencies" in the employer’s evidence. 

The tribunal made an award of £9,500, which is in the middle Vento band. Her former employer’s delay in providing her with a reference caused Mrs Wilson to have financial problems and to seek treatment for depression. 

Additional resources

• Line manager briefing on providing and requesting references This line manager briefing looks at the law and best practice on references. It includes information both on providing and on seeking references, and includes a summary of important guidance contained in the Employment Practices Data Protection Code. 
• Policy on giving and requesting references Use this model policy to control the giving and receiving of employee references. 

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Manager’s "sexual favours" remark was not sexual harassment

Dos Santos v Preview Services Ltd ET/2700170/10

Date added: 22 March 2011

sex discrimination | sexual harassment | constructive dismissal

In this case, the employment tribunal found that a manager's single remark, despite being of a sexual nature, was intended as a joke and did not amount to sexual harassment. 

Mrs Dos Santos, who worked as a document scanner for Preview Services Ltd, claimed that she had raised various grievances that were not addressed. These included complaints that:

• a request to change her shift hours had been refused (although agreement to a variation was later reached);
• a supervisor, Tracy Meads, had been "rude and patronising" by asking her if she was an employee or an agency worker;
• she had been refused when she asked for assistance from a member of the IT department and an agency worker; and
• she had asked for, but been refused, an unpaid leave of absence. 

She later claimed that an incident occurred where Tracy Meads shouted at her in front of colleagues after she asked for help with barcodes. A meeting was held and the supervisor apologised for the incident. 

Mrs Dos Santos took the unusual step of writing a letter to the management accepting the apology and thanking them for "conscientiously following up the grievance procedure". She wished it to be delivered by hand, but did not have an envelope. She approached another supervisor, Mr MacDonald, and said, "Can I ask you a favour?", with the intention of asking for an envelope. His response was, "As long as it is not a sexual favour". 

Mrs Dos Santos took offence at this remark, but later said that she did not complain at the time because she did not want to be seen as a "troublemaker". 

The employer asked Mrs Dos Santos to attend a capability meeting the following week. This was her second capability meeting (the first had been a few months before) and it related to evidence that she had not been paying attention to her screen. She went home feeling ill around 30 minutes before the meeting and was signed off work. 

A few weeks later, after several delays because of Mrs Dos Santos' illness and a cancellation by the employer, the capability meeting took place. Mrs Dos Santos brought a six-page document that set out her grievances, and one of the issues that she raised was Mr MacDonald’s "sexual favour" comment. The managers present at the capability meeting refused to discuss her complaints, saying that it was appropriate to deal with them in a separate grievance meeting. Mrs Dos Santos formally resigned the next day, and it later transpired that she had been seeking alternative employment during her sick leave. 

The employment tribunal was satisfied with the employer's conduct, holding that the way in which the employer treated the claimant did not entitle her to resign and claim constructive dismissal. In fact, it had "worked hard with her to meet almost every request she made". The employer had good business reasons to turn down her initial requests for a shift change and it had dealt swiftly with her complaint against Tracy Meads. Mrs Dos Santos may have felt that she had been undermined by her colleagues on other occasions, but she had not complained at the time and this meant that the employer was not in a position to take any action. In addition, she had not complained straight away about Mr MacDonald’s "sexual favour" comment so she could not have seen this as a sufficient reason for her resignation. 

The employment tribunal also rejected Mrs Dos Santos's sexual harassment and direct sex discrimination claims. Although the tribunal accepted that the manager's remark was "possibly unwise" given that English was not Mrs Dos Santos's first language, the only way it could be seen was as an innocent joke between colleagues with a long-term working relationship. The claimant's reaction to it was excessive. The tribunal noted that its decision might have been different had the remark been a request for a sexual favour or been accompanied by an obscene gesture. 

Additional resources

• How to comply with the law on sex discrimination Our "how to" section provides guidance on how to comply with the law on sex discrimination. 
• Get more information on sex discrimination in the XpertHR FAQs section:
  • Is harassment in relation to sex expressly prohibited under the Equality Act 2010?
  • What is the difference between sex-based harassment and sexual harassment?
  • If a third party harasses an employee, will his or her employer be liable for the third party's actions under the Equality Act 2010?

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Football officials suffered age discrimination

Martin and others v Professional Match Game Officials Ltd ET/2802438/08

Date added: 17 March 2011

age discrimination | retirement | justification | unfair dismissal

This well-publicised decision concerns whether or not four assistant referees were discriminated against as a result of a retirement age of 48. 

Mr Martin was an assistant referee working for Professional Match Game Officials Ltd, which supplies referees and assistant referees to the professional game. The company is funded by the Football Association of England and Wales (the FA), the Premiership, and the Football League. There are a number of tiers for officials, the highest of which - the “select list” and “national list” - are under the company’s control. The company considered its assistant referees to be self-employed contractors. 

The company operates a retirement system whereby all officials attaining the age of 48 during a season will have their membership of the select or national lists terminated, unless they seek to be retained. If an official seeks to be retained, the company considers his or her application, and there is a right of appeal if the application is rejected. 

In the case of Mr Martin and three of his colleagues, who were also assistant referees, the company took a decision, after they had reached 48 years of age, not to allow them to continue work. This decision was based on an evaluation of their performance in their final season and previous seasons. The four men brought claims for age discrimination and automatic unfair dismissal. 

The tribunal had to consider whether or not the claimants were employees for the purposes of the Employment Rights Act 1996, to establish whether or not they were entitled to claim unfair dismissal. The company’s concession that each assistant referee contracted, for each engagement, to personally provide his services, implied the existence of some form of mutuality of obligation. However, the tribunal did not find that this mutuality of obligation was of sufficient weight to establish a contract of service, and dismissed the unfair dismissal claims. 

With regard to the age discrimination claims, the company conceded that its retirement age was discriminatory, but argued that it was justified as being a proportionate means of achieving a legitimate aim. The tribunal agreed with the claimants that the purely private interests of an individual company are not sufficient to qualify as legitimate aims, and that there must be an element of social policy. 

The tribunal found that the company’s aims were, in order of importance:

• Ensuring the continuing availability of match officials to officiate in matches at the highest level (the primary aim). 
• Creating a career route from the bottom to the top of the game for match officials of appropriate ability, which implied a mix of experience, and therefore ages, at each level (the secondary aim). 
• Supplying officials who meet the requirements of FIFA both as to age and as to ability (the tertiary aim). 

The tribunal found that the primary and tertiary aims did not meet the social policy requirement (and were therefore not legitimate), but that the secondary aim did (and was therefore legitimate). 

Irrespective of the question of legitimacy of these aims, however, the tribunal found that the means the company adopted to meet them was not proportionate. The company accepted that none of the claimants would have been dismissed or demoted on the basis of their performance had they not also been aged 48 or over: in other words, assistant referees over the age of 48 were held to a higher standard of performance as a condition of retention than their younger colleagues. 

The tribunal found that the company had been evasive in its response to a discrimination questionnaire, and took into account the company’s failure to provide the minutes of board meetings during which it claimed to have discussed the retirement age. The tribunal was not satisfied, on the balance of probabilities, that there are no alternatives to the company’s approach that are less discriminatory and which would not be workable. Achieving “churn” was a legitimate aim, but one that the company did not take a proportionate approach to. The tribunal focused on the FA’s approach, which is to achieve churn by demoting a defined percentage of match officials selected by their placing on a merit table, as established by game performance assessment. 

The tribunal went on to find that, even if a retirement age policy was appropriate, the company had done nothing to show that the appropriate age is 48. None of its witnesses were able to say why 48 is justified, as opposed to 49 or 50, for example. In the face of this “complete lack of evidence on the significance of 48 as opposed to some other age”, the company was “totally unable to justify that particular age” and, therefore, unable to justify its discriminatory approach. 

Additional resources

• How to comply with the law on age discrimination The XpertHR "how to" section provides clear guidance on complying with age discrimination law. 
• Get more information on age discrimination in the XpertHR FAQs section:
  • What "positive action" is permitted under discrimination legislation?
  • Under the age discrimination provisions of the Equality Act 2010 is an employer prevented from using job titles including the words "senior" and "junior"?
  • Is it unlawful to include a preferred age range in a job advertisement?

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Crashing ferry constituted gross misconduct

Holmes v Wightlink (Guernsey) Ltd ET/3102913/10

Date added: 16 March 2011

unfair dismissal | gross misconduct | health and safety

This case concerns an employee whose “error of judgment” had disastrous consequences. 

Mr Holmes was employed by Wightlink (Guernsey) Ltd as a ship's master. He was responsible for the safety of his vessel, passengers and crew. His employment was the subject of extensive written conditions and policies, and his first consideration was the safety of the lives on board. 

On 28 May 2010, there was a serious incident at a car-ferry terminal in Portsmouth, when Mr Holmes was attempting to berth the ferry named “St Faith”. Mr Holmes crashed the ferry into the berth, causing extensive damage to the ship and the dock and minor injuries to two passengers. At the time of the incident, Mr Holmes had been in charge of the ship for nine hours without a break, and was about 25 minutes behind schedule. 

A manager at the company, Captain Dop, boarded the stricken vessel to assess the situation. Mr Holmes suggested that he had needed to be on the bridge at all times, given that there was no one else who could pilot the ship, and that he had probably been tired but had not realised it. The company suspended Mr Holmes, and a disciplinary hearing to consider the charge of gross negligence was arranged for 10 June 2010. 

Around this time, the Marine Accident Investigation Branch (MAIB) was undertaking its own investigation into the incident, and issued its report to the company on 15 June 2010. The report identified the most significant factor contributing to the collision as the vessel’s “relatively fast speed”, and noted that, although the ship had been running late, there was no evidence to suggest any commercial pressure on Mr Holmes to try to make up lost time. The report found, on the basis of a computer programme designed specifically for fatigue analysis, that, although Mr Holmes had been on duty for nine hours at the time of the accident, it was not likely that fatigue was a contributory factor. 

The company took the MAIB report into account, and dismissed Mr Holmes at a reconvened disciplinary hearing conducted by Captain Dop on 16 June 2010. Mr Holmes appealed on several grounds, including that the decision to dismiss had not been made solely on information discussed at the disciplinary hearing, and that Captain Dop should not have been involved in both the investigation and the disciplinary hearing stages. Mr Holmes also argued that the company had not taken into account his diabetes, which meant that he needed to eat regularly. The company rejected his appeal, and he claimed unfair dismissal. 

The tribunal found that Captain Dop’s involvement in both the investigation and the disciplinary hearing stages had no adverse effect on his ability to conduct the hearing impartially and that, if anything, his first-hand observations at the incident most likely assisted his understanding. The tribunal found that the company was aware of Mr Holmes' diabetes, but that fatigue was not found to be relevant by the MAIB report, on which the company was entitled to rely, and that Mr Holmes had given evidence that he would eat whenever he wanted to when on the bridge. 

The tribunal found that Captain Dop had, for the purposes of the disciplinary hearing, obtained a memo from another captain, who had previously had cause to speak to Mr Holmes about his ship-handling skills. Captain Dop had also relied on a letter from July 2003 to Mr Holmes advising him to be aware of his speed. Neither the memo nor the letter were discussed with Mr Holmes at the disciplinary hearing, but the tribunal did not find that this rendered the dismissal unfair. The memo did not form part of Captain Dop’s decision-making process, and the letter did not need to be discussed with Mr Holmes because a decision to dismiss could have been made without reference to it. 

Overall, the tribunal found that the disciplinary procedure adopted by the company was one that befitted the seriousness of the allegations and the likely consequences for Mr Holmes. It found that Mr Holmes' dismissal was fair, and dismissed his claims. 

Additional resources

• XpertHR's policies and documents section provides the following model documents relating to misconduct dismissals:
  • Letter confirming the dismissal of an employee for misconduct Use this model letter to confirm a dismissal on grounds of misconduct following a series of warnings. 
  • Letter to an employee confirming his or her dismissal for gross misconduct Use this model letter when an employee is to be summarily dismissed due to gross misconduct. 
  • Letter informing an employee of the outcome of an appeal against dismissal Use this document to confirm the decision following an appeal against dismissal. 
• Get more information on gross misconduct in the XpertHR FAQs section:
• What is gross misconduct?
• What can an employer do where it suspects that an employee has committed an act of gross misconduct, but has no concrete proof?  

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Childcare emergency resulted in detriment and dismissal

Clarke v Credit Resource Solutions ET/1809275/10

Date added: 10 March 2011

unfair dismissal | time off for dependants | asserting a statutory right

Employees are protected against detriment and dismissal for taking time off for dependants, as the employer in this case found to its cost. 

Mr Clarke worked as a debt collector for Credit Resource Solutions, where his wife, Nichola, was also employed. Their small children were generally looked after by Mrs Clarke’s mother during working hours. On the morning of 5 July 2010, Mr Clarke was informed that Nichola’s mother could not look after the children that day. Since Nichola’s start time was 8.30am, they decided that she would go to work and he would look for someone else to look after the children. Nichola would inform Mr Clarke’s manager that he would be late in that day. 

After finding a childminder, Mr Clarke arrived at 10am for his 9.30am shift. He had never been late before. He was asked to sign a “late form”, which stated that he agreed that he was late, and that one hour would be deducted from his salary for that month. Mr Clarke refused to sign the form, arguing that he was being penalised for having to make emergency arrangements for the care of his children. 

On 28 July , Mr Clarke received his payslip and found that one hour’s pay had been deducted. He spoke to the finance manager, Mr Essex, in an agitated manner. The next day, Mr Essex complained about Mr Clarke’s behaviour. The company suspended Mr Clarke, and a disciplinary hearing took place on 9 August. At the hearing, the company said that, if Mr Clarke signed the form and agreed to a final written warning, he would not be dismissed. Mr Clarke declined this proposal, and maintained that he had done nothing wrong. The company dismissed Mr Clarke for “refusal to carry out reasonable instructions and threatening behaviour”. 

Mr Clarke brought tribunal claims of unfair dismissal and detriment due to taking time off for dependants. He argued that the real reason for his dismissal was because he was late due to making childcare arrangements. The company argued that Mr Clarke’s dismissal was unconnected with his taking emergency time off, and said that he was aware that, had he signed the form, the company would have considered whether or not to exercise its discretion not to deduct one hour’s pay. 

The tribunal found that Mr Clarke had been entitled to take time off for his dependants, and that he suffered detriments for this when the company put pressure on him to sign the “late form”, and when it later deducted an hour’s pay from his salary for being late. With regard to the unfair dismissal claim, the tribunal found that the real reason for dismissal was Mr Clarke’s refusal to sign the late form. There was no evidence that he had acted in a threatening manner towards Mr Essex, and the fact that the company was prepared to give him a final written warning for this behaviour showed that it did not consider it to amount to gross misconduct. 

With regard to the charge of “refusing to carry out reasonable instructions”, which referred to the company’s request that Mr Clarke sign the late form, the tribunal found that he was unaware of any management discretion not to make a deduction from his pay. If he signed the form, he would be consenting to the deduction and, despite his requests, the company failed to explain the need for him to sign the form and the reason for the deduction. 

The tribunal accepted that, although Mr Clarke’s refusal to sign the form was the principal reason for his dismissal, that reason was connected with him having lawfully exercised his right to take time off to make childcare arrangements. This was not a case of an “awkward employee refusing to sign a form”: the reason Mr Clarke would not sign was because he knew that he had been exercising a statutory right. There being a sufficient connection, the tribunal upheld Mr Clarke’s unfair dismissal claim, as well as his detriment claim. 

Additional resources

• How to handle statutory rights to time off work in special circumstances Be aware of the rights of certain employees and workers to be permitted a reasonable amount of paid or unpaid time off work in certain prescribed circumstances. 
• Get more information on time off for dependants in the XpertHR FAQs section:
  • Who counts as a "dependant" for the purposes of the right to time off for dependants?
  • What requirements are there on an employee to inform the employer that he or she is taking time off for dependants?
  • Are employees paid for time off for dependants?

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Solicitor harassed by firm manager’s offensive behaviour

Chambers v Purcell Solicitors ET/1201606/09

Date added: 9 March 2011

sex discrimination | harassment

This is a classic example of inappropriate behaviour resulting in a successful harassment claim. 

Mrs Chambers is a solicitor, and in October 2008 began work for Purcell Solicitors, where Mr Purcell is the practice manager. In November 2008, he sent an email to all staff about the need to repair the women’s toilets, which read “Alison has told me that the middle loo in the ladies has a broken seat…Dare I ask how this could possibly have happened?”

On January 2009, Mrs Chambers arrived at work with a bad back. When she met Mr Purcell, he suggested “by use of facial expression and physical mimicry” that the cause of her sore back was “indulging in sexual relations”. Mrs Chambers found this disturbing. Later the same day, with reference to a television programme that he had seen about apes, Mr Purcell suggested loudly to staff that working at the firm was akin to being in a tribe of apes where there were very few male apes, who as a result received lots of female attention. 

The firm held an annual conference and, on 22 January 2009, Mr Purcell emailed all staff stating that two female employees had said to him that they would rather sleep in rooms with twin beds than in a double bed with a colleague. One of these employees was Mrs Chambers. The email asked staff to be “completely honest” and state what their preferences were. The three options were:

• Are you prepared to share a room with someone else and sleep in a double bed?
• Are you prepared to share a room with someone else and sleep in twin beds?
• Do you really want your own room?

Mr Purcell went on to explain that the selected venue had only double beds, and that the third option would be “prohibitively expensive”. During the later tribunal proceedings, Mr Purcell could not explain why he had used the word “really” in the third option. When asked if the male members of his staff had been asked to share a double bed at the venue, he responded that you could not ask a man to share a bed with another man. 

The firm’s male trainee solicitor replied to Mr Purcell, stating that, in the interests of saving costs, he was “happy to share a bed with as many girls as is required”. Mr Purcell forwarded this email to all staff, stating that it was a very generous offer. 

Mr Purcell also made regular reference to “the ugly test”. This was a reference to when members of staff are photographed for official purposes. On 26 March 2009, he emailed staff attaching photographs of “Sam and Lisa”, stating, “two more beautiful girls that I am proud to say have passed the ugly test”. Later that day, Mr Purcell sent another email to staff regarding firm-organised lottery tickets, stating: “You can rely on me to be reasonable in any property settlement arising from a lotto win. Why? Because I am a man.” 

Among other claims related to her hours of work and an alleged disability, Mrs Chambers claimed sex discrimination, arguing that Mr Purcell’s inappropriate behaviour constituted harassment. The tribunal found that the behaviour in question did have the effect of intimidating and humiliating Mrs Chambers, whom it found is not over-sensitive. It found that Mr Purcell’s conduct was of a sexual nature, and directed to only female members of staff. 

Although the firm argued that Mr Purcell’s conduct amounted to a series of unconnected events, the tribunal found that his behaviour was an ongoing state of affairs. It was unimpressed with the evidence of Mr Purcell, who throughout proceedings referred to the female members of staff as “his girls” in “an entirely proprietary manner”. In addition, in giving his evidence, Mr Purcell was “prone to exaggerated and histrionic demonstrations”, such as holding the testament aloft while refuting allegations relating to his conduct. 

The tribunal found that the conduct of Mr Purcell complained of by Mrs Chambers represented his normal attitude to his workplace and staff, and upheld her claims of harassment on the ground of sex. 

Additional resources

• How to comply with the law on sex discrimination Clamp down on any “Mr Purcells” in your organisation with our “how to” guide. 
• Get more information on sex discrimination in the XpertHR FAQs section:
  • Is harassment in relation to sex expressly prohibited under the Equality Act 2010?
  • What is the difference between sex-based harassment and sexual harassment?
  • If a third party harasses an employee, will his or her employer be liable for the third party's actions under the Equality Act 2010?

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Bannatyne fitness club discriminated against Thalidomide victim

Williams v Bannatyne Fitness Ltd ET/1311340/09

Date added: 8 March 2011

disability discrimination | reasonable adjustments | victimisation

Employers that fail to use common sense when dealing with disabled employees will fall foul of discrimination law, as a well-known fitness chain found to its cost in this case. 

Mr Williams is a Thalidomide victim, and has impaired upper limbs. He worked at Bannatyne Fitness Ltd’s Tamworth club as a health and fitness coach, under a zero-hours contract. In December 2008, Mr Ferrington became general manager at the club, and a note was issued to employees that they should no longer use the side entrance to the club. Mr Williams was not aware of this memorandum and, when he tried to use the door on 9 January 2009, he injured his shoulder. 

On 10 January 2009, Mr Williams complained that he wanted certain items, including light switches and the computer system, moved to a different area so that he could use them safely. Later the same day, he sent a further grievance about a new signing-in procedure, which had been implemented without regard to his disability, and his pigeonhole, which had been relocated to a stairwell, where he could not access it. 

As a result of his shoulder injury, Mr Williams was off work from 9 January until 5 May 2009. On 31 March, a grievance meeting was held to address Mr Williams’ concerns. He asked to be able to tape record the meeting, being unaccompanied and unable to take notes. The company refused, on the basis that “that would make it formal”. The meeting was adjourned, and attempts to rearrange it were unsuccessful. 

On 27 April 2009, the company made an announcement regarding redundancies, but “did not bother” to contact Mr Williams to tell him that this would involve him not being offered any hours. On 5 May, Mr Williams called Mr Ferrington and said that he was ready to return to work. Mr Ferrington said that he should come in the following day. On 6 May, Mr Williams returned to work, and was surprised to find out about the redundancy announcement. 

On 18 May 2009, he was observed speaking to members and staff in the club, and was subsequently informed by letter that he should not visit the club any more. The reason given by the company was its policy that staff who worked less than 20 hours per week were not permitted to use the club outside working hours. 

The company proposed a meeting on 22 July 2009 to discuss Mr Williams’ grievances of 10 January. This was to take place at a Premier Inn. Mr Williams was not prepared to attend the meeting at that location, as he wanted it to take place at the club, so that he could show the company the physical problems that he was having there. The company declined to hold the meeting at the club, on the basis that activities were being held there that day. The company decided to reject Mr Williams’ grievances without meeting him, and declined his request for an appeal. He brought a claim for disability discrimination, arguing that the company had failed to make reasonable adjustments for him, and had victimised him. 

The tribunal found that the company was under no obligation to move electronic equipment in the club, on the basis that Mr Williams was not required to use it as part of his duties. Nor was it obliged to alllow Mr Williams to use the side entrance to the club. 

The tribunal did, however, find that the company was in breach of its duty to make reasonable adjustments for Mr Williams in failing to move his pigeonhole to a more accessible location. The tribunal held that the company had also failed to make reasonable adjustments in not allowing Mr Williams to take notes of his grievance hearing (“we cannot see any justification at all for the company’s behaviour in respect of this”) and by insisting on holding the rearranged grievance meeting at the Premier Inn (“it cannot be beyond the wit of man to suggest an alternative day to carry out the meeting”). 

The tribunal did not uphold Mr Williams’ victimisation claims. It found that his hours had been reduced because of the club’s financial situation (not because of his complaints), and that his exclusion was because the company believed that he had been discussing his work situation with staff and members. Although the company’s refusal to hold the rearranged grievance hearing at the club constituted a failure to make a reasonable adjustment for Mr Williams, the tribunal was satisfied that this related to his behaviour on 18 May 2009, and not to his grievance. 

Additional resources

• How to comply with the law on disability discrimination Avoid the same fate as Bannatyne Fitness Ltd with our “how to” guide. 
• Get more information on reasonable adjustments for disabled employees in the XpertHR FAQs section:
  • Is an employer breaching the Equality Act 2010 if it fails to make adjustments for a disabled person?
  • What reasonable adjustments could an employer consider if it employs a member of staff with a disability that fluctuates?
  • Where an employer redeploys a disabled employee to a lower-grade post under its obligations to make reasonable adjustments, is it obliged to maintain the employee's salary level?

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Employees were not entitled to be accompanied at investigation meetings

Thomson and others v London Underground Ltd ET/3301388/10

Date added: 3 March 2011

right to be accompanied | disciplinary investigation meetings

This case concerns whether or not three employees were entitled to be accompanied at disciplinary investigation meetings held by a third party. 

Mr Thomson, Mr Faik and Mr Cambe worked for London Underground Ltd, and on 8 December 2009 were informed, by a letter from the company, that another employee had made a formal complaint of harassment against them. The letter stated that the complaint had been passed to the company’s external investigators, CMP Resolutions, on whose behalf Lisa Perkins would carry out an investigation. The letter confirmed that, as the investigation interviews were fact-finding meetings, the employees did not have the right to be accompanied at them by a work colleague or trade union representative. 

The agreement between the company and CMP Resolutions states that the latter will provide written reports on disciplinary investigations. These reports contain a summary of the issues and evidence and, more controversially, an indication of the recommended action that the company should take following the investigation. This includs the possibility that the case will be referred to a disciplinary panel. 

After some delays due to the issue of accompaniment, and the company reconfirming the position on that issue, the investigation meetings took place on 4 February 2010, and the three employees were not accompanied. Miss Perkins’ investigation report to the company concluded that “the investigator does not consider that [the alleged harassment] amounted to criticisms of [the complainant] and has therefore concluded…that the weight of evidence indicates that this complaint should not be upheld”. The three employees brought a tribunal claim alleging that they had been denied the right to be accompanied at the investigation interviews. 

The tribunal considered that it was a “dangerous practice” for the company to allow an independent external investigator, appointed to consider allegations of harassment, to reach conclusions, even provisional ones. It found that this risks a complainant being told that his or her complaint is upheld, despite the fact that there is a further and significant process to be undertaken - the disciplinary hearing - which is to establish the guilt or otherwise of those apparently responsible. The tribunal stated that it has the further risk of suggesting to the alleged perpetrator that a decision about his or her guilt has already been reached. 

The tribunal found that, although there was no suggestion that Miss Perkins’ conclusions would be regarded as determinative of the company’s actions following the investigation, it was understandable why the three employees thought that might have been the position. Nevertheless, the tribunal held that the clear purpose of the meetings with Miss Perkins was investigatory only, and that all she could do was to make recommendations as to disciplinary action, not impose any action herself. Any disciplinary action that resulted from any subsequent disciplinary hearings would be the outcome of that process as well as the earlier investigation, and not merely the consequence of the investigation itself. The tribunal dismissed the employees’ claims. 

Additional resources

• How to deal with workers' statutory right to be accompanied at disciplinary and grievance hearings Section 10 of the Employment Relations Act 1999 provides that, after a reasonable request, a worker must be allowed to be accompanied at a hearing by a single companion, chosen by him or her from three categories of people. 
• Get more information on the right to be accompanied in the XpertHR FAQs section:
  • Do employees have the right to be accompanied at disciplinary investigation meetings?
  • Do employees have the right to be accompanied at meetings under a redundancy procedure?
  • What is a "reasonable" request by a worker to be accompanied at a disciplinary or grievance hearing?

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Employee fairly dismissed for sabotaging hidden microphones

Richards v CW Sellors (Gold & Silversmiths) Ltd ET/3500632/10

Date added: 2 March 2011

unfair dismissal | whistleblowing | reason for dismissal

This case concerns whether or not an employee, who had less than one year’s service, was unfairly dismissed for making a protected disclosure. 

Ms Richards was employed as a stock controller by CW Sellors (Gold & Silversmiths) Ltd, which is a jewellery retailer with a number of branches. In April 2009, Mr Sellors, the company’s managing director, showed her some CCTV footage, and told her that the technology was being trialled in some branches. Ms Richards noted that the footage had audio. 

On 26 November 2009, Ms Richards’ line manager, Mr Housely, made reference to her having attended a job interview in Peterborough. Ms Richards found this odd, given that she had largely kept her application for a job with another employer, in Peterborough, a secret from the company, and certainly from Mr Housely. 

Around this time, Ms Richards noticed two grey boxes, which had green LEDs on them, at the Buxton branch, where she worked. She removed the cover of one of the boxes, and saw what she believed to be a microphone. She did not contact the company to ask what the boxes were, but instead photographed the circuit board inside the box, and sent the photographs to “an expert in the electronics industry” for examination. 

As a result of her discovery, Ms Richards believed that the company was covertly and unlawfully recording her and other employees. On that basis, she determined that she would cover the microphones, with the purpose of disabling, or at the very least significantly distorting, their recording quality. She achieved this by placing Blu-Tack and paper over the microphones. 

Ms Richards discussed the matter with her boyfriend, who sent her an article about employee monitoring. On 26 November 2009, she sent this article, and the email exchanges with her boyfriend, to various people at the company. On 2 December 2009, Mr Housely discussed the matter with Ms Richards, who showed him the boxes covered with Blu-Tack. Mr Housely was not concerned about the emails that she had sent, and explained to her that the microphones were not part of the CCTV system and as such were not recording anyone, but were part of the alarm system. Ms Richards agreed to remove the devices she had placed to hinder the equipment. 

Ms Richards, however, did not remove the Blu-Tack and paper, and the situation escalated when Mr Sellors became aware that she had been tampering with the alarm equipment. An investigation by Mr Housely, who made enquiries of ADT, the alarm provider, found that Ms Richards’ actions could have affected the alarm system and invalidated the company’s insurance. ADT confirmed that the microphones would not activate unless the alarms were tripped. Mr Housely also found that Ms Richards had attached photographs of the alarm system to some of the emails sent to her boyfriend. He formed the view that this could have posed a security risk. 

A disciplinary hearing was held regarding charges against Ms Richards of:

• tampering with the alarm system;
• failing to remove the Blu-Tack and paper when instructed; and
• photographing the alarm system. 

No charges were brought regarding her emails. The company dismissed Ms Richards, and her appeal was unsuccessful. As Ms Richards had less than one year’s service at the time of her dismissal, she claimed automatic unfair dismissal, arguing that she had been dismissed as a result of making a protected disclosure. 

 The tribunal found that Ms Richards’ disclosures to the company, on 26 November and 2 December 2009, were protected disclosures. She had a reasonable belief that she and others were being covertly and unlawfully monitored. However, the tribunal found that Ms Richards had not been dismissed for making those disclosures, but as a direct result of her tampering with, and photographing, the alarm system. Although those actions were technically connected with her disclosures, that was not enough for her claim to succeed: the reason for the dismissal had to be the disclosure itself, and not any other reason. The tribunal dismissed Ms Richards’ claim. 

Additional resources

• How to handle "whistleblowing" Workers who "blow the whistle" on their employer (by making a protected disclosure) have the legal right not to be dismissed, selected for redundancy or subjected to any other detriment (demotion, forfeiture of opportunities for promotion or training, etc) for having done so. 
• Get more information on whistleblowing in the XpertHR FAQs section:
  • What is a public interest disclosure?
  • To whom can a worker "blow the whistle"?
  • How should an employer prevent employees disclosing to external bodies?

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“Full-blown moony” constituted sexual harassment

AM v GF and another ET/3300089/10

Date added: 1 March 2011

sex discrimination | harassment | gross misconduct

As with so many discrimination cases, this decision involves a “joke” that went badly wrong. 

AM, as she was identified in the tribunal judgment, worked as a receptionist for Balfour Beatty Rail Ltd at its Ruislip depot. She was on good terms with GF, a male colleague who worked in the depot, albeit away from the reception area. There was evidence that they addressed each other with phrases such as “hello, sexy” and “hi, handsome”. Banter is commonplace at the company, as was the practice of “mooning”. GF’s evidence, which AM did not deny, was that mooning was a “way of life” at the workplace, and was used as a morale booster. 

On 7 October 2009, while AM was talking with a colleague, Mr Cambridge, GF entered the reception area, having parked his car in a restricted area. AM told GF that his car was blocking a fire exit, and that he should not park there again. There was a conflict of evidence as to what happened next. 

On AM’s account, she told GF that, if he parked in the restricted area again, she would “have [him] up for it”. She resumed her conversation with Mr Cambridge but, on turning round to look at GF, saw that “he had dropped his trousers, bent over with his hands on his knees, and was shaking his bottom”. She believed that she saw parts of his genitals, and turned away. GF said “you missed your chance, baby”, and left the reception area laughing. 

On GF’s account, AM had said to him, regarding his parking, “if you do that again I’ll slap your ass”. He moved to within two metres of AM and bared the top of his buttocks, saying “there’s your chance” in a joking fashion. 

AM complained to the company’s HR department, and GF was suspended the following day. The company interviewed AM, who provided a statement saying that “it was a full-blown moony, everything was hanging out”. At his investigation interview, GF presented a letter of apology, saying that he had been joking and that he realised his behaviour was unacceptable. Mr Cambridge’s evidence corroborated GF’s version of events. 

GF’s disciplinary hearing, for alleged sexual harassment, took place on 20 October. At this hearing, GF reluctantly disclosed that he had undergone major gender reassignment surgery in 1991 and that, although he dresses and presents as a man, he does not possess male genitalia. The company dismissed GF for “obscene behaviour in a public area”. AM brought a tribunal claim for sexual harassment. 

The tribunal had to decide, on the balance of probabilities, which account of the events of 7 October was more likely. It found that the logical sequence of events was that AM made a comment about GF being “naughty” and that she would “smack” him, after which GF said something about AM having the chance to do so. The tribunal also found that it was likely that GF had bent over, because this would be consistent with “acting the part of a naughty schoolboy”. However, the tribunal found that AM did not see GF’s male genitalia, for the simple reason that he does not have any. 

The tribunal held that, although there was a history of banter between AM and GF, there was nothing that set mooning as consistent with that level of familiarity, and that GF’s behaviour was unwanted and of a sexual nature. AM found this distressing, and it was reasonable of her to do so. However, the tribunal did not find, as AM asserted, that her feelings of anger at the incident were comparable with those of a rape victim. It upheld AM’s discrimination claim, and awarded her £4,500 for injury to feelings. It assessed that £3,500 of this should be paid by the company, and £1,000 by GF personally. 

Additional resources

• XpertHR's policies and documents section provides a range of model policies regarding harassment, and discrimination generally:
  • Policy on dealing with harassment complaints Use this model policy as part of the company staff handbook in order to give employees who believe that they have been harassed or bullied at work a route to raise a complaint either informally or formally. 
  • Policy on investigating claims of bullying and harassment Use this model policy to set out the procedure that will be used to investigate a complaint or suspicion of bullying or harassment. The policy could form part of an overall anti-bullying/harassment policy, or part of an equal opportunities policy. 
  • Equal opportunities and dignity at work policy Use this model policy as part of the company's staff handbook or as a standalone document if there is no handbook. Larger employers may wish to use XpertHR's more detailed separate equal opportunities and dignity at work policies. 
• How to deal with bullying and harassment in the workplace An employer may be liable for discrimination if bullying and harassment is related to one of the relevant protected characteristics under the Equality Act 2010: age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.