In the employment tribunals: January 2012

XpertHR provides summaries of recent employment tribunal rulings. 

Decision to hold disciplinary hearing in employee's absence rendered dismissal unfair
Unfair dismissal of riding instructor who allowed niece to ride horse contrary to insurance policy
Employee unfairly sacked by “jealous” boss for accompanying colleagues to grievance hearings
Betrayal of employee by his union representative after dismissal for gross misconduct led to unfair dismissal
Employee emailed pornographic video by lying manager was unfairly dismissed for inappropriate use of work computer
Race discrimination: former NHS worker awarded nearly £1m
Barclays discriminates against Seventh Day Adventist Christian who could not work Saturdays
Experience requirement for shortlisting indirectly discriminated against female job applicant

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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Decision to hold disciplinary hearing in employee's absence rendered dismissal unfair

Bridgeman v Family Mosaic Housing Association ET/2201804/11

Date added: 26 January 2012

unfair dismissal | capability | disciplinary hearing in employee's absence

Employers should not be too hasty in holding a disciplinary hearing in an employee's absence, as this case demonstrates. 

Ms Bridgeman started employment with Family Mosaic Housing Association in September 2008 as a support officer, providing support to vulnerable adults. The tribunal found that, in 2008 and 2009, she had a weak manager who did not provide her with support or an objective assessment of her skills. As a consequence, it was unclear whether or not Ms Bridgeman's performance during that period was satisfactory. 

In April 2010, there was a serious incident relating to one of Ms Bridgeman's clients. The association conducted an investigation, which identified shortcomings with her performance that had not come to light earlier because of the poor line management. A disciplinary hearing was arranged, but had to be postponed twice at Ms Bridgeman's request. She was eventually told that, if she did not attend, the disciplinary hearing would go ahead in her absence. 

The hearing, which took place on 4 August 2010, resulted in Mr Black (the manager who had originally recruited Ms Bridgeman) issuing her with a final written warning. Ms Bridgeman was moved to a new team and placed on a "work plan" to allow her performance to be monitored. She was not dismissed because the poor earlier line management was seen as a mitigating factor. 

From the early days of Ms Bridgeman's time on the work plan, there were problems, which were recorded by her new management team (her manager, Mr Phelan, and his superior, Ms Jones). In particular, Mr Phelan and Ms Jones criticised Ms Bridgeman for her inadequate risk assessments, an issue that could put the vulnerable adults in her care in danger. 

In October 2010, Ms Bridgeman had another change of manager. Her new manager, Ms Findlay, was herself being performance managed and, although Ms Findlay reported that Ms Bridgeman's work was "satisfactory", Ms Jones did not agree. On 21 January 2011, Ms Jones prepared a report stating that Ms Bridgeman had "failed to demonstrate that she is capable of carrying out the basic functions of her role" and there was "the risk of a serious incident due to lack of competency". 

Ms Bridgeman was off sick for part of January 2011 and eventually provided a sick note for a virus at some point after 21 January. On 31 January, while she was still off sick, the association invited Ms Bridgeman to a disciplinary hearing. In early February, Ms Bridgeman telephoned the association to say that she was trying to get another sick note for her continued absence. 

On the day of the hearing, Ms Bridgeman rang to say that she was not well enough to attend. Mr Black decided to go ahead with the disciplinary hearing in Ms Bridgeman's absence. He considered that she was being uncooperative and he did not see a reason to postpone the hearing. Mr Black's view was that the outcome would not have been any different if she had attended. Ms Bridgeman obtained a sick note on 15 February. In a letter dated 16 February, Mr Black informed Ms Bridgeman that she was being dismissed, a decision that she appealed unsuccessfully. She claimed unfair dismissal. 

The employment tribunal held that the association had genuine and reasonable grounds for dismissal. However, it went on to conclude that, in his haste to press on with recruiting a replacement, Mr Black had got the wrong balance between the needs of the association and Ms Bridgeman's rights. The decision to go ahead with the hearing on the first occasion on which Ms Bridgeman did not attend was too hasty. 

The tribunal acknowledged that the Acas code of practice on disciplinary and grievance procedures (on the Acas website) says that employers do not have to wait indefinitely for an employee to attend a disciplinary hearing if he or she is suspected of malingering or has not kept in touch. However, the tribunal also stressed that the right to a disciplinary hearing is "the bedrock of a fair dismissal process" and it must not be dispensed with lightly. While Ms Bridgeman did have a history of delaying disciplinary hearings, the disciplinary process was right at the beginning and Mr Black did not have sufficient information to decide whether or not Ms Bridgeman was abusing the system. This was a substantial procedural failing, especially given the size of the employer. 

The tribunal did decide that Ms Bridgeman would have been dismissed anyway and reduced her compensatory award to zero. This was because:

• she could not be allowed to continue to work with vulnerable adults, given her serious performance issues;
• she was reluctant to recognise that she had been underperforming and could not be redeployed;
• she was already on a final written warning; and
• several independent managers, none of whom bore the claimant a grudge, agreed that she could not be allowed to continue. 

Ms Bridgeman's compensation was limited to a basic award. 

Additional resources

• Although the employee in this case chose not to attend the disciplinary hearing of his own volition, a much more common scenario is where the employee's absence is due to sickness. XpertHR provides a full set of documents, with guidance, to help you deal with this difficult situation:
• Letter to a doctor seeking advice on whether or not an employee is well enough to attend a disciplinary hearing
• Letter informing a sick employee that a disciplinary hearing is going ahead in his or her absence
• Letter informing a sick employee of the outcome of a disciplinary hearing that has gone ahead in his or her absence
• Balogun and another v Centre West London Buses Ltd [2005] All ER (D) 225 (Nov) EAT In this appeal case, the Employment Appeal Tribunal held that it was reasonable for the employer to continue with a disciplinary hearing in the employees' absence. 
• Perara v APCOA Parking UK Ltd ET/2200061/09 Employees often are unable to, or simply choose not to, attend disciplinary hearings. In this employment tribunal case, the employer was left with the difficult decision of whether or not to proceed in the employee’s absence. 

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Unfair dismissal of riding instructor who allowed niece to ride horse contrary to insurance policy

Hargreaves v JWD Tractors Ltd t/a JWD Equestrian ET/2405858/11

Date added: 26 January 2012

unfair dismissal | health and safety | insurance

This case is a good example of how the dismissal of an employee for a failure to follow an important protocol or rule can be unfair where the protocol or rule was not communicated effectively in the first place. 

Ms Hargreaves worked as a riding instructor and groom at an equestrian centre. Six horses at the centre were used to give riding lessons, and a further 40 livery horses were stabled there for clients in return for a fee. 

In December 2010, Ms Hargreaves asked Mrs Pallas, the yard manager, if she could bring in her young niece to sit on a horse. A "sit on" means a short ride on a horse without an official lesson. Mrs Pallas agreed, expecting that the ride would be on one of the six riding-school horses. 

Mrs Pallas asked Ms Hargreaves to fill in a rider registration form. About two-thirds of the form is completed by the individual having the lesson (or parent or guardian, if the rider is a child). The remaining third of the form has to be filled in by the riding instructor or supervisor. However, Ms Hargreaves failed to complete this part of her niece's form. 

Ms Hargreaves allowed her niece two sit ons, but both were on a livery horse, not a riding-school horse. After the first ride, Mrs Pallas queried the child's age with Ms Hargreaves because of how small the child seemed. Mrs Pallas explained that, for insurance purposes, there was a minimum age of five for riding. Ms Hargreaves confirmed that her niece was five. On reading the rider registration form, Mrs Pallas discovered that the child was in fact only four years old. 

A company director, Mr Charnley, suspended Ms Hargreaves and invited her to a disciplinary hearing by a letter dated 21 January 2011. The invitation letter stated that she was accused of not acting "responsibly and truthfully". The company added a number of other allegations to the proceedings, relating to Ms Hargreaves':

• exercising clients' horses in return for taking a fee on the side;
• stating on recruitment that she had obtained a degree that she had not in fact completed; and
• failing to refer customers to senior staff at appropriate times. 

Mr Charnley's investigation consisted of speaking to Mrs Pallas and another member of management, Ms Clark. No notes documenting the investigation or conversations with Mrs Pallas or Ms Clark were produced at the subsequent tribunal hearing. 

At the disciplinary hearing on 26 January 2011, Ms Hargreaves accepted that she had not completed her part of the rider registration form, but said that she did not think that this was a strict requirement for informal sit ons. The company referred to a meeting that had taken place a few months earlier at which Mrs Pallas was said to have explained the company's new insurance policy, which set the minimum age for riders at five. Ms Hargreaves queried when this meeting had taken place, but was not given any further information about it. 

Mr Charnley announced at the end of the disciplinary hearing, without any adjournment or break, that Ms Hargreaves was being dismissed. Her dismissal with immediate effect was confirmed in a letter dated 26 January 2011. The reason given for the dismissal was that she had "lied to [her] manager and allowed a child under the age that was required for cover under the [company's] insurance policy to be on a client's pony on the [company's] premises and under [her] control". The letter also made reference to Ms Hargreaves' failure to fill in her part of the rider registration form. Ms Hargreaves appealed, stressing that, once she became aware that there was an insurance issue with her niece's age, she did not allow her to ride on the horses again. Ms Hargreaves' appeal was unsuccessful and she claimed unfair dismissal. 

The employment tribunal found that Ms Hargreaves had not deliberately lied about her niece's age and had simply been mistaken about it. In addition, Ms Hargreaves did not believe that the child's age was important, being unaware of the insurance issue. It was also her understanding that it was not necessary to fill in the form as the child was not having a lesson and was not using a riding-school horse. 

The tribunal concluded that the company had no grounds for assuming that Ms Hargreaves had, at the time of the relevant events, fully understood its recently amended insurance policy. Ms Hargreaves could not have been aware that the same insurance policy applied to children having an informal ride on livery horses as those having lessons taking place on riding-school ponies. 

The tribunal had concerns about the procedure that the company had followed, particularly the number of allegations that it had put to Ms Hargreaves during the disciplinary hearing, with confusion over the relative importance of each one. The tribunal was also critical of Mr Charnley's:

• acting as both the investigator and the chair of the disciplinary hearing;
• failure to hold an investigatory meeting with Ms Hargreaves; and
• giving his decision at the end of the disciplinary hearing, without an adjournment. 

Although the company argued that Ms Hargreaves had contributed to her own dismissal with "culpable and blameworthy" conduct, the tribunal refused to reduce her compensation. There was no clear policy on when staff had to fill in the form for livery horses, and Ms Hargreaves had stopped the activity as soon as she became aware that her niece's age was important because of the insurance restrictions. 

Additional resources

• Procedure on conducting a disciplinary investigation Use this model policy to set out how the employer will carry out a disciplinary investigation. 
• In the employment tribunals Read summaries of more cases in which a single breach of protocol led to an employee's dismissal:
• Henshaw v Touch Tanning Ltd ET/2605284/09 In this case, a family-run business made the classic mistake of having one person act as "judge, jury and executioner" in a disciplinary procedure against an employee accused of misconduct. 
• Mulla v Nestlé UK Ltd ET/1810731/09 In this case, an employment tribunal held that a manager's dismissal for a one-off mistake that could have had fatal consequences was fair. 

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Employee unfairly sacked by “jealous” boss for accompanying colleagues to grievance hearings

Evans v Open Sight ET/3100599/11

Date added: 18 January 2012

automatic unfair dismissal | accompanying colleagues at formal hearings

As this case shows, employees with less than one year’s service can still claim unfair dismissal if the principal reason for their dismissal is that they accompanied, or sought to accompany, colleagues at disciplinary or grievance hearings. 

Mrs Evans started part-time employment with Open Sight, a charity, on 1 September 2010. During October, the chief executive, Mr Hedges, offered her full-time employment, which she began on 1 November 2010. 

Mrs Barrett, the deputy chief executive, had joined the charity on 4 May 2010. She attended Mrs Evans’ interview and opposed her appointment, believing that it was unnecessary to fill the vacant post. Her evidence was that she had been overruled by Mr Hedges. 

Mrs Evans shared an office with her manager, Mrs Bellamy, who had been instrumental in recruiting her. During the early period of Mrs Evans’ employment, Mrs Bellamy became concerned that Mrs Barrett displayed signs of “professional jealousy” against Mrs Evans, who was substantially better qualified than she was. Mrs Barrett told Mr Hedges that she thought that Mrs Evans would make a better deputy chief executive – indeed, in Mrs Evans’ interview, she had said that she aspired to Mrs Barrett’s position. 

On 4 November 2010, Mr Hedges was suspended based on complaints by Mrs Barrett. He asked Mrs Evans to accompany him at his disciplinary hearing on 1 December, which she did. At this hearing, Mrs Evans challenged the fact that Mrs Barrett was acting up in the role of chief executive, given that she was the instigator of disciplinary proceedings against Mr Hedges, and that he had made allegations of bullying against Mrs Barrett. 

On 8 November 2010, Mrs Bellamy was also suspended based on allegations made by Mrs Barrett. Mrs Bellamy asked Mrs Evans to accompany her at her disciplinary hearing on 16 December. In early December, Mrs Archenhold, the finance manager, asked Mrs Evans to accompany her at a formal grievance hearing regarding complaints about Mrs Barrett. In the event, Mrs Evans was dismissed before the hearings for Mrs Bellamy and Mrs Archenhold took place. 

Mrs Evans’ three-month probationary period expired on 30 November 2010, and Mrs Barrett, who was acting as her line manager during Mrs Bellamy's suspension, held a probationary review meeting with her on 9 December. At this point, no complaints about Mrs Evans’ performance had been made to or discussed with her. Before the review meeting, Mrs Barrett consulted the charity’s legal advisers, Peninsula. Her note of the discussion started with advice that Mrs Evans had “no statutory rights”, which the tribunal later inferred to mean that she did not have the one year’s qualifying service to claim “ordinary” unfair dismissal. The note said “don’t think it appropriate”, which Mrs Barrett later confirmed referred to Mrs Evans' acting as a companion for three colleagues. The note also referred to her “going behind [Mrs Barrett’s] back” to another manager, Mr Gaines, about being a representative, and to her taking time off to see one of the colleagues she was representing. It also confirmed that a business plan that Mrs Barrett had asked Mrs Evans to send to her did exist and had been sent to Mrs Bellamy and Mr Hedges. 

Mrs Barrett claimed in the tribunal that she made no decision on Mrs Evans’ employment on 9 December, and discussed her decision with Mr Gaines so that he could obtain the approval of the trustees. She decided to dismiss Mrs Evans, and stated in the dismissal letter that the reason was that Mrs Evans had not met the standards required in her post, and had failed to demonstrate her suitability for her role during her probationary period. Mrs Barrett’s notes for 10 December showed that she spoke to Mr Gaines and that he emailed the trustees to seek their approval for Mrs Evans’ dismissal; that she took advice from Peninsula to obtain its approval of the dismissal; and that both these actions were completed before she met with Mrs Evans to confirm her dismissal. She reported to Peninsula again after dismissing Mrs Evans. 

Although she did not have the required one year’s service to claim “ordinary” unfair dismissal, Mrs Evans claimed automatic unfair dismissal, arguing that the principal reason for her dismissal was that she had accompanied, or sought to accompany, colleagues at disciplinary and grievance hearings. The tribunal had to decide whether or not, on the balance of probabilities, this was what had happened. 

Mrs Barrett contended that she had significant concerns about Mrs Evans’ capability and performance, and issues of conduct that she viewed as insubordination and lack of respect to her. She felt that the “breakdown in trust was sufficient that [they] could not move forward”, and was the reason for dismissal. Part of her argument involved the refusal of Mrs Evans to provide her with the business plan, which she claimed amounted to a “refusal to obey a reasonable management instruction”, and indicated that the report did not exist (which contradicted her notes of the 9 December 2010 discussion with Peninsula). The tribunal preferred the evidence of Mrs Evans, Mr Hedges and Mrs Bellamy that Mrs Evans had produced the business plan. 

Mrs Barrett also complained that Mrs Evans had taken time off to prepare for the disciplinary hearings of Mr Hedges and Mrs Bellamy. She said that any preparation time had to be agreed with her, and that Mr Gaines had informed Mrs Evans of this. The tribunal found this allegation to be unfounded. Mr Gaines told the tribunal that, on 10 December, he had emailed the trustees to obtain their approval of Mrs Evans’ dismissal, but could not produce the email. 

In coming to its decision, the tribunal considered the following factors:

• The allegation that Mrs Evans was underperforming and lacked capability was inconsistent with the evidence of Mr Hedges and Mrs Bellamy, and her being placed on garden leave and paid in lieu of notice. 
• There was “not one shred of evidence” that performance issues were addressed by the charity prior to 9 December 2010. 
• The dismissal letter was “curiously” silent about the charity’s asserted reason for dismissal (a loss of trust and confidence due to Mrs Evans’ conduct). 
• Mrs Evans’ ambition and comments during her interview may well have led to a feeling of insecurity in Mrs Barrett, leading her to rid herself of a potential opponent when the opportunity arose. 
• Mrs Barrett did not like Mrs Evans’ direct approach to matters and her lack of deference towards her, which she perceived as insubordination. 
• There was bound to be conflict between Mrs Evans and Mrs Barrett after Mrs Evans made it known that she was accompanying three colleagues at formal hearings. 
• It was “telling” that the issue of whether or not it was appropriate for Mrs Evans to accompany her colleagues appeared at the start of Mrs Barrett’s notes of her discussion with Peninsula on 9 December 2010. 
• It was no coincidence, the tribunal felt, that Mrs Evans was dismissed shortly after having accompanied Mr Hedges at his hearing and given four-and-a-half hours of staff support the day before her probationary review meeting. 

The tribunal found it “neither credible nor plausible” that the charity would have been in such close contact with Peninsula if the reason, or principal reason, for Mrs Evans’ dismissal was capability or conduct. If that had been the case, the tribunal felt that there would likely have been only one consultation, in which Peninsula would have advised the charity that it could terminate Mrs Evans’ employment with impunity, as she could not claim “ordinary” unfair dismissal. The fact that the charity was in contact with its legal advisers several times in a few days was more consistent with the charity’s “nervousness” about dismissing Mrs Evans for a prohibited reason – because she was a companion to colleagues at hearings. 

The tribunal did not expect the charity to admit that it had dismissed Mrs Evans for a prohibited reason, and found that Mrs Barrett dismissed her partly because of the conflict between them (including Mrs Evans’ refusal to act in a deferential manner) and partly because of Mrs Evans’ challenge to her authority by acting as a companion to three colleagues. 

The tribunal held that the principal reason for dismissal was related to Mrs Evans' acting as a representative for colleagues: this issue was the focus of the discussions with Peninsula around the time of her dismissal. Mr Hedges’ hearing had taken place only a week previously, when Mrs Evans was performing well, and two further hearings were expected in the near future, with possible appeals following, all of which represented a challenge to Mrs Barrett’s authority. 

Additional resources

• Automatically unfair reasons for dismissal The XpertHR quick reference section sets out the automatically unfair reasons for dismissal. 
• How to handle an underperforming employee Most minor day-to-day performance problems can be dealt with informally and do not reoccur. Where issues persist or escalate, and more serious action is needed, it is vital for the employer to adopt the correct approach. 

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Betrayal of employee by his union representative after dismissal for gross misconduct led to unfair dismissal

Ahmed v Premier Foods Group Ltd ET/1309299/11

Date added: 17 January 2012

unfair dismissal | gross misconduct | violence at work | disciplinary evidence

In this case, an employee dismissed for gross misconduct was betrayed by his union representative at the appeal stage, something that none of the tribunal members had previously encountered. 

Mr Ahmed was employed by Premier Foods Group Ltd to work as a bakery operative and machine operator at the Hovis Bakery in Birmingham. On the night of 29 April 2011, he worked a night shift, during which he was involved in an incident with a colleague, Mr Wasim, who complained to the line managers that Mr Ahmed had hit him. The line managers took statements from both employees and other colleagues. 

Mr Ahmed’s statement provided the following version of events. He had returned from a break when he noticed that the warning light on the production line’s metal detector was flashing, which meant that it needed testing. He went to test it, but Mr Wasim asked him to relieve him first from his duties, so that he could go on his break. Mr Ahmed told Mr Wasim that the light had been flashing for 10 minutes, and asked him why he had not done the test. Mr Wasim had replied “this is your bloody job”, and grabbed Mr Ahmed by the neck, scratching him. Mr Ahmed pushed him away and he walked off. 

Mr Wasim’s account of the incident was different. Mr Ahmed had ignored his request to relieve him so that he could take his break, using the need to test the metal detector as an excuse. There was an argument about who should do the test. Mr Ahmed shouted “in his own language” and hit Mr Wasim three times in the face. 

The statements of other colleagues said that they had been aware of shouting, but that they had not seen either man use force on the other. The tribunal later thought that some or all of these individuals must have witnessed much more than they admitted to, but wished to avoid being seen to take sides. One of the line managers provided a statement, which said that, when Mr Wasim came into the office, he had a red mark on the side of his face that was “clearly visible”. 

Another manager carried out an investigation. During this, Mr Ahmed admitted that both he and Mr Wasim had used strong language, but said that the language used by Mr Wasim was more serious. He said that he pushed Mr Wasim away, but very gently, and denied hitting him. Mr Wasim told the investigating manager that Mr Ahmed had initiated the confrontation, and had sworn at and hit him. Mr Wasim denied swearing or using any force. The tribunal found that the investigation was thorough. The investigation report concluded that both men should face disciplinary proceedings. 

On 19 May 2011, a disciplinary hearing for Mr Ahmed took place to address the charge of “unacceptable behaviour and conduct towards a work colleague”, which the company deemed to constitute gross misconduct. Mr Ahmed was accompanied by Mr Rashid, a shop steward. A disciplinary hearing for Mr Wasim took place the same day. After further investigation, the disciplinary officer resumed both hearings, and concluded that both employees were guilty of the same offence and should be summarily dismissed. He considered them equally blameworthy. 

Both employees appealed against their dismissal. Mr Wasim’s appeal took place on 6 June 2011, and he was accompanied by a full-time trade union official. The appeal officer was the manufacturing manager, Mr Sarwar, who adjourned the hearing pending Mr Ahmed’s appeal. 

There were difficulties securing the attendance at Mr Ahmed’s appeal of the full-time union official, and in the end the hearing took place on 26 July 2011 with him accompanied by Mr Rashid. Mr Sarwar conducted further enquiries after the hearing, re-interviewing all the witnesses, and his evidence was that nothing significant came of this. In particular, he said that nothing that amounted to new evidence emerged. 

Mr Ahmed’s evidence at the tribunal hearing was that Mr Rashid visited him on the evening of 26 July. He claimed that Mr Rashid said that the union official who had represented Mr Wasim had decided that they could save the job of only one of the two men and that, because the union official was more senior than Mr Rashid in the union hierarchy, it had to be Mr Ahmed who lost his job. This evidence was not challenged at the tribunal hearing. 

On 27 July 2011, Mr Rashid met Mr Sarwar and told him that he had new evidence. This evidence was that Mr Ahmed had admitted to Mr Rashid that he had struck Mr Wasim. Mr Sarwar asked Mr Rashid to confirm this in writing and he did so by a letter dated 27 July. 

The letter stated that Mr Rashid had himself seen Mr Wasim shortly after the altercation, and that Mr Wasim was “shaking uncontrollably and had a red mark on his face”. On the night of the incident, unidentified individuals had told Mr Rashid that Mr Wasim had been assaulted by Mr Ahmed. After the two employees had been dismissed, Mr Rashid had carried out his own investigation. Mr Ahmed had admitted to Mr Rashid that he had assaulted Mr Wasim, but that he had expected “to say sorry afterwards and shake hands”. The letter was not shown to Mr Ahmed, and its contents were not communicated to him. In fact, Mr Ahmed did not know of the letter’s existence until his tribunal proceedings had begun. 

Mr Sarwar wrote to Mr Ahmed dismissing his appeal, and referred to “new evidence submitted supporting the allegation”. He decided that Mr Wasim’s appeal should be allowed because he considered him less blameworthy than Mr Ahmed, and reinstated Mr Wasim with a final written warning. 

Mr Ahmed claimed unfair dismissal. The tribunal found that the disciplinary officer had reached a decision that had been reasonably open to him on the evidence that was before him. The tribunal was “more hesitant” about whether or not Mr Sarwar’s belief in Mr Ahmed’s guilt was reasonable but, leaving aside the evidence from Mr Rashid, concluded that the evidence before him enabled him reasonably to differentiate between the two employees and conclude that there was a greater degree of fault on the part of Mr Ahmed than on that of Mr Wasim. 

The tribunal found that, had it not been for the matter of Mr Rashid’s letter, it would have concluded that the disciplinary process was reasonable. Mr Sarwar told the tribunal that he had reached his decision about Mr Ahmed’s appeal before he had heard from Mr Rashid and that he had disregarded both Mr Rashid’s information and his letter. He said that the reference to “new evidence” in the appeal outcome letter was a mistake on the part of the HR person who had drafted the letters. The tribunal rejected Mr Sarwar’s evidence on this point as “wholly incredible”; there was, on Mr Sarwar’s own account of the matter, no new evidence apart from the letter from Mr Rashid. 

Although not every piece of re-investigation or new information received at the appeal stage without notice to the employee will render a disciplinary process unfair, here Mr Sarwar had received a completely new piece of evidence from a “most extraordinary” source. None of the members of the tribunal had “ever encountered a case in which a person [had] been betrayed…by a letter written contrary to his interests by his trade union official”. The tribunal found that, had Mr Sarwar given Mr Ahmed the opportunity of commenting on the new evidence, Mr Ahmed would have told him that Mr Rashid had admitted that there was a union agreement to abandon him to attempt to save Mr Wasim’s employment. Mr Sarwar might or might not have accepted that information, but at least he would have been in possession of it. Instead, he had proceeded to reach his conclusion. The tribunal was satisfied that he had been “strongly influenced” by Mr Rashid’s letter, and that rendered the process “wholly and irredeemably unfair”. 

The tribunal held that the dismissal was outside the range of reasonable responses, and unfair. Once Mr Sarwar had decided to make a distinction between the two employees, it was necessary that the distinction should be rationally justified. The tribunal was satisfied that “the major if not the sole reason” for the distinction was Mr Rashid’s evidence. That was not a basis on which a reasonable appeal officer could make such a distinction. 

Additional resources

• How to handle appeals against disciplinary decisions While there is no statutory duty for employers to provide employees with the right of appeal against a disciplinary penalty, it is an important part of a fair disciplinary procedure. A failure to provide the right of appeal would amount to a breach of the Acas code and could result in a finding of unfair dismissal. 
• Get more information on disciplinary appeals in the XpertHR FAQs section:
  • Is an employee required to submit an appeal against a disciplinary decision in writing?
  • Is there a specific timescale for holding a disciplinary appeal hearing?
  • What happens to an employee’s continuity of service if he or she is dismissed but reinstated on appeal?

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Employee emailed pornographic video by lying manager was unfairly dismissed for inappropriate use of work computer

Caller v Newham University Hospital ET/3201242/10

Date added: 12 January 2012

unfair dismissal | gross misconduct | inappropriate use of work computer | offensive material

In this unusual case, an employee was dismissed for offensive material on his computer despite the fact that his manager, who lied during the disciplinary process, had been aware of some of the material and even emailed him a pornographic video at work. 

At the time of the events concerned, Mr Caller had been a telephone operator at Newham University Hospital since 1997. He worked mainly at night, and was permitted to use his work computer for personal matters including sending and receiving emails and attachments, looking at the internet and downloading files. On 28 September 2009, the head of the hospital’s IT department, Mr Jeffery, discovered that Mr Caller’s user profile was very large in size, containing “thousands of files and folders”. On investigating these, Mr Jeffery found what he considered to be a high volume of “unauthorised and inappropriate material”, including music and graphic files containing pornographic or otherwise offensive images. Another employee, Mr Johns, began an investigation. 

Among the “vast quantity” of material that had accumulated on Mr Caller’s profile on the work computer over many years were:

• a video entitled “mission impossible” that showed “live sexual intercourse”;
• a video entitled “shocking moments” that showed “someone in Asia apparently being electrocuted on top of a train”;
• a number of photomontages of “young women in alluring outfits” with photographs of the faces of female employees at the hospital (including Mr Caller’s manager, Ms Potter, and her manager, Ms Madigan) superimposed on the bodies;
• a number of pictures of Ms Madigan, including one with an offensive caption;
• many “thumbnail” (very small) photographs of “young women without many clothes on”; and
• photographs of DVD covers of adult films. 

At some point in the investigation, Mr Caller alleged that Ms Potter had emailed him the “mission impossible” video at work and it appears that a colleague, Mr Clark, had sent him the “shocking moments” video. Mr Johns interviewed Ms Potter, and she provided a statement on 30 October 2009. She said that she remembered seeing the “mission impossible” video on a work computer (although she could not remember which one), and told Mr Caller that it was “disgusting”. She said that she had never seen the video as part of an email sent to her, and had never forwarded the video by email to anyone else. 

Mr Johns showed Ms Potter the photomontages. In her statement, she said that she had not previously seen all of these, including some that involved Ms Madigan. She said that the montage of her was put on the wall in the department “some months ago”, and that she “did not think it was too bad”. 

A disciplinary hearing took place on 8 and 12 January 2010, chaired by Ms Barr, to address the allegation of “accessing inappropriate material on the internet from a [work] computer, and the impact on work being delivered and the effect on patient care”. Mr Johns told the disciplinary panel that Ms Madigan had confirmed that the montage of Ms Potter had been on the wall of their shared office for some months. 

Ms Potter told the disciplinary panel that “some” of the montages were on her office wall for “about half an hour” before she took them down, and said that “not much” banter went on in the department. When asked to respond to Mr Caller’s assertion that Ms Potter had emailed him the “mission impossible” video, she said that she recalled seeing it “but not sending it on”, and that she would “take full responsibility for this” if needed. Mr Clark confirmed that he had emailed Mr Caller the “shocking moments” video at work. 

With regard to the impact of Mr Caller’s behaviour on his work and on patient care, the disciplinary panel was provided with an analysis prepared by Ms Potter. In mid-January 2010, Mr Caller was dismissed for gross misconduct, and his appeal was unsuccessful. By the time of his appeal, the tribunal found, Ms Potter had admitted that she had lied about sending him the “mission impossible” video. Mr Caller claimed unfair dismissal. 

At the tribunal hearing, the hospital admitted that Ms Potter had emailed Mr Caller the “mission impossible” video, which the tribunal considered the most offensive of the sexual images stored on his work computer. It also admitted that Mr Clark had emailed Mr Caller the “shocking moments” video. Mr Caller had sent neither of these videos to anyone else. The hospital admitted that at least one of the photomontages, that of Ms Potter’s head on the body of a young woman in a bikini, had been displayed in her and Ms Madigan’s shared office for “some months”. When the tribunal examined Ms Potter’s analysis of the effect of Mr Caller’s behaviour on his work, it found it unreliable, and the hospital conceded that it was “patently defective”. 

The tribunal found that there was “very little evidence” that Mr Caller had accessed inappropriate material over the internet. There was a dispute between the parties over when Mr Caller became fixed with knowledge of the hospital’s strict computer policy, although the tribunal found that the earliest date that the hospital could demonstrate such knowledge was June 2009. Further, the policy was “muddied” by the practice of the managers, including Ms Potter and Ms Madigan. 

Nevertheless, the tribunal considered that, even without the written computer policy, the storage on Mr Caller’s computer of the offensive material in question would “in any circumstances” be a basis for a disciplinary sanction. However, the tribunal considered that this case was complicated by the involvement of other staff, and the hospital’s comparative response to Ms Potter and her misconduct – it heard evidence that she had been given a six-month warning, much to the surprise of Ms Barr. 

The tribunal found that Ms Potter had not only condoned the photomontages but permitted at least one of them to be displayed in her office and, in all probability, had viewed photomontages of Ms Madigan but had done nothing about them (Ms Madigan had appeared “outraged” when shown montages of herself by Mr Johns). Ms Potter had sent Mr Caller the “mission impossible” video and lied about it to Mr Johns, in her investigation statement and in the disciplinary hearing that led to Mr Caller’s dismissal. 

The tribunal felt that it would have been apparent to the hospital that there was an “inappropriate culture of sexual banter supported by visual material” in the department. The tribunal included Ms Madigan in this, given that she had condoned the sexual banter by acquiescing in the display of at least one photomontage in her office for a number of months. 

The tribunal found that, in all the circumstances, the decision to dismiss Mr Caller was unfair. He had been working at the hospital for over 12 years, since before there was a computer-use policy, and the hospital’s computer-use policy was "muddied". Although the hospital had a genuine and reasonable belief in the allegation that Mr Caller had misused his work computer, there was no evidence that it had ever considered the relative positions of Ms Potter and Mr Caller. The evidence of the disciplinary sanction against Ms Potter, in the context of Mr Caller’s disciplinary hearing, established on the balance of probabilities that the hospital gave “no consideration at all” to the disparity between its treatment of the two employees. The tribunal considered that the decision to admonish Ms Potter but dismiss Mr Caller was “perverse”. 

The tribunal found that Ms Potter had presided over a department in which the inappropriate use of work computers was a regular feature and an aid to distasteful sexual banter. After the disciplinary investigation was under way, Ms Potter and Ms Madigan appear to have ensured that it was directed towards, focused on and effectively limited to Mr Caller. 

The tribunal upheld Mr Caller’s claim, but assessed his contributory fault at 50%, and awarded him total compensation of just under £13,400. 

Additional resources

• How to decide on an appropriate disciplinary penalty XpertHR outlines the considerations to be taken into account when deciding on an appropriate disciplinary penalty. 
• 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. 
• Deal with disciplinary proceedings the right way with these "how to" guides:
  • How to conduct a disciplinary investigation
  • How to chair a disciplinary hearing
  • How to handle appeals against disciplinary decisions

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Race discrimination: former NHS worker awarded nearly £1m

Browne v Central Manchester University Hospitals NHS Trust ET/2407264/07; ET/2405865/08; and ET/2408501/08

Date added: 11 January 2012

race discrimination | compensation | chance of promotion

In this case, the employment tribunal awarded an NHS worker, who was dismissed from his senior position in the NHS, close to £1m for race discrimination, despite the tribunal's refusal to increase the award for future loss of earnings on the basis of the worker's argument that he might have been promoted before he retired. 

In March 2011, an employment tribunal upheld claims for race discrimination and unfair dismissal brought by Mr Browne against Central Manchester University Hospitals NHS Trust. Mr Browne, who is black and had been with the NHS for his entire career (from the time he left school), had worked his way up as a specialist in microbiology until he became a divisional director at the trust. 

The tribunal found that Mr Browne had been subjected to a campaign of bullying and harassment by Ms Heaton, the director to whom Mr Browne was directly accountable. The tribunal said that the discrimination had occurred after concerns were raised about overspend and failure to meet national targets in Mr Browne's division. Mr Browne was suspended and his employment was eventually terminated in May 2008 on the basis that there had been, among other things, a "loss of trust and confidence" between the parties. 

The tribunal concluded that Mr Browne had been unfairly dismissed because the trust had put forward "contradictory and unsatisfactory evidence" as to the reason for dismissal. The trust did not hold an honest and genuine belief that Mr Browne was guilty of misconduct or poor performance justifying dismissal, while the allegation that there had been a loss of trust and confidence was "seriously flawed". 

The employment tribunal went on to find that the manner in which the capability procedure against Mr Browne was conducted constituted direct race discrimination. The tribunal also pointed out that the trust had failed to take Mr Browne's grievances seriously, including his complaint that statistics showed that there was a pattern of more black employees than white employees being dismissed by the trust. 

The tribunal gave its remedy judgment in December 2011. The tribunal accepted that Mr Browne, who had not had a day off sick in 20 years, had suffered from depression, with his suspension and dismissal making him feel "helpless with guilt and self doubt". He had been unable to sleep and had panic attacks. After his dismissal, Mr Browne had felt "isolated and very upset". The tribunal proceedings had brought him a great deal of stress, putting pressure on his family relationships. He was "visibly distressed" during the tribunal hearing. Mr Browne could not imagine working in the NHS again, despite having a successful 34-year career behind him. 

The award for race discrimination included:

• £20,000 for injury to feelings, which is in the upper Vento band;
• £5,000 for aggravated damages;
• £13,000 for personal injury;
• over £172,000 for loss of earnings to the date of the hearing;
• over £100,000 for future loss of earnings; and
• almost £245,000 for loss of pension rights. 

When arriving at the award for future loss of earnings, the tribunal noted that Mr Browne had set up his own consultancy to make use of his large network of contacts with NHS surgeons. However, it decided that he would earn less annually than he had in his NHS job, making a profit of around £30,000 for the year ending 31 August 2011. He had worked only two to three days per week on the consultancy business. The tribunal also highlighted that, with the cuts to the public sector, it was becoming more difficult to succeed in a consultancy business like this. The tribunal also had no doubt that future loss of earnings should be calculated on the basis that Mr Browne would have worked for the NHS until his retirement, although it did take account of the possibility that he would have retired at 60 rather than 65. 

A key part of Mr Browne's argument in the remedy hearing was that his compensation should take into account the possibility that he would have been promoted to executive director before he retired. The tribunal concluded that it was "far too speculative" to estimate the chance that he would have been promoted. There were a number of positions for executive director within the trust that might have become available, but there were relatively few that would have been open to Mr Browne, given his specialism. The tribunal did not think that it was enough that a number of his peers had been promoted to this level. It had insufficient statistical evidence of the level of competition that Mr Browne would face (ie the number of applicants and the skills that they would have when compared with Mr Browne) or the number of posts that would be available in the relevant period. Mr Browne's award for future loss of earnings was therefore based on his remaining at the level of divisional director. 

Once the award (which also included over £8,500 for unfair dismissal) was "grossed up" to allow for the tax that it would attract, the total compensation came to £933,115. 

Additional resources

• Race discrimination awards 2010/11 The 2010/11 Tribunals Service report on employment tribunal and Employment Appeal Tribunal statistics sets out the amount of compensation awarded for race discrimination in 2010/11. 
• In the employment tribunals Read summaries of more cases in which employment tribunals paid large awards: 
• Race and sex discrimination: former NHS doctor with post-traumatic stress disorder awarded almost £4.5m This employment tribunal has awarded a former NHS doctor one of the largest ever discrimination payouts after she was subjected to a sustained campaign of sex and race discrimination. 
• Unfairly dismissed whistleblower wins £1.2 million compensation Compensation for a successful whistleblowing claim is unlimited, as the employer in this case found to its cost. 
• £792,000 award for harassed and unfairly dismissed disabled football journalist In this case, the employer’s unrelenting desire to dismiss the employee resulted in the highest disability discrimination award in the period from 1 April 2009 to 31 March 2010. 

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Barclays discriminates against Seventh Day Adventist Christian who could not work Saturdays

McDougall v Barclays Bank plc ET/3203801/09

Date added: 11 January 2012

religion or belief discrimination | direct discrimination | indirect discrimination | harassment | recruitment

Employees involved in interviewing should be wary of potential discrimination issues, as this case involving religion or belief discrimination shows. 

Mrs McDougall is a Seventh Day Adventist Christian and, due to her beliefs, cannot carry out any work on the Sabbath, which begins at sunset on Friday and ends at sunset on Saturday. Around May 2009, Mrs McDougall saw an advert at the jobcentre by Barclays Bank for part-time customer service roles. 

She applied and, after passing some tests at the jobcentre, was put forward for a telephone interview. Barclays outsources its recruitment process to Alexander Mann Solutions (AMS). It was Barclays’ intention to require the recruits for the part-time roles to work on Saturdays, although the advert did not state this, because it wanted to open more branches on that day. AMS was aware of this requirement and understood that applicants who were unable to work on Saturdays were not acceptable. 

On 24 June 2009, Ms Dawe (from AMS) called Mrs McDougall to carry out the telephone interview. The evidence given by both individuals about this conversation was at the heart of this case. 

Mrs McDougall’s evidence was that, after going through various procedural matters, she was asked about the areas of London in which she could work. Ms Dawe asked her if she could work on Saturdays. Mrs McDougall replied that this was her day of worship and she normally went to church, but she was available six days per week. Ms Dawe asked her what time she went to church, and she confirmed this as between 9.30am and 1pm. Ms Dawe said that she would need to work on Saturdays for the position, and she responded that she could not do so. Ms Dawe said that she would need to terminate the interview, despite Mrs McDougall pleading with her, saying that she sincerely wanted the job. Ms Dawe insisted that she could not proceed, and that she would withdraw the application. 

Ms Dawe, who said that she had completed a proforma document for the interview during the conversation, gave evidence as follows. She agreed with Mrs McDougall’s evidence up to the point where she advised her that she would need to work on Saturdays. Mrs McDougall said that she was unable to work on Saturdays, but did not give any reason why. Ms Dawe advised Mrs McDougall “several times” that Saturday working was a requirement, before “putting [her] on hold for a short while” to seek advice from a colleague, Ms Kler, who sat next to her. Ms Dawe and Ms Kler agreed that applicants would be required to work on Saturdays. Ms Dawe took Mrs McDougall off hold and told her that she was unable to progress the application any further for this reason. Mrs McDougall replied with words to the effect of “what a shame”. Ms Dawe said that Mrs McDougall “chuckled” when she said this, and “appeared upbeat about the decision”. 

In her proforma document, Ms Dawe merely recorded “PT/FT – London flexi – can’t do Saturdays”. Ms Kler and Mr Kenny (a manager) were sitting within a few feet of Ms Dawe during the conversation, but did not hear exactly what she said. Both confirmed in evidence that Ms Dawe asked Ms Kler whether or not it was a requirement for applicants to work on Saturdays. Ms Kler said that she heard Ms Dawe say “if there are changes in your circumstances please come back to us”. 

Very soon after the conclusion of the telephone interview, Mrs McDougall texted her husband about it, saying: “They asked if I could do half day on Saturday, I explained that it is my day of worship, immediately they terminated my interview. I am crying b’coz I know I have chose the right decision and Jesus will stand 4 me [sic].” Later that day, Mrs McDougall told two friends about what had happened. 

Shortly after the interview, Mrs McDougall emailed Ms Kler saying that she was “very unhappy” with the way in which the interview had been “abruptly terminated” and that she felt “strongly” that she had been discriminated against, although she did not mention her religious beliefs or the Saturday working issue. 

Mrs McDougall sent a written complaint to Mr Kenny on 30 June. He carried out an investigation, during which Ms Dawe said that “at no point” in the interview did Mrs McDougall say that she could not work on Saturdays for religious reasons, or indeed mention religion at all. A Barclays manager dealt with Mrs McDougall’s complaint. He accepted the version of events given by Ms Dawe and Ms Kler, and rejected the complaints. He told Mrs McDougall that the company would be happy for her to reapply for other roles and would work with her to find an opportunity that did not require Saturday working. 

Mrs McDougall claimed direct and indirect religion or belief discrimination against Barclays, as well as harassment. The tribunal had to decide which of Mrs McDougall’s and Ms Dawe’s conflicting versions of events was more likely, on the balance of probabilities, taking into account the various surrounding evidence. Barclays argued that Mrs McDougall accepted Ms Dawe’s decision to terminate the telephone interview but, after the end of the call, realised that she should have mentioned that her inability to work on Saturdays was because of her religion. It argued that she had then texted her husband and phoned her friends to make excuses for her failure. The tribunal found that, in essence, Barclays was suggesting that Mrs McDougall had invented the story in an attempt to gain from the matter. The tribunal did not find this a compelling argument, and there was no evidence to support it. 

The tribunal balanced all of the evidence and decided that Mrs McDougall’s account was more likely to be correct than Barclays’ version of events. In particular, it was influenced by the fact that she had made an immediate complaint of the basic facts to her husband and to one of her friends. 

The tribunal upheld the direct discrimination claim. Barclays gave evidence that it had made special arrangements for individuals prevented from working on Saturdays, for example because of religious belief or childcare commitments. The tribunal found that the correct hypothetical comparator was an applicant who had childcare difficulties for whom arrangements would be made to work on days other than Saturdays. No such arrangements were offered to Mrs McDougall, and Ms Dawe’s refusal to progress the interview was on the ground of Mrs McDougall’s religion or belief because she had given that as the reason that she could not work on Saturdays. Barclays’ offer to reconsider the situation did not constitute a defence. 

The tribunal also upheld the indirect discrimination claim. The relevant provision, criterion or practice was the criterion – unknown to the applicants – that they be able to work on Saturdays. Mrs McDougall, because she could not work on Saturdays because of her religious beliefs, was put at a disadvantage when compared with others who did not have beliefs that prevented them from working on that day. 

Barclays argued that the criterion was justified as a proportionate means of achieving a legitimate aim. Its objective of opening more branches on Saturdays, which required more staff, was legitimate. However, while in general terms it would be proportionate to achieve that aim by asking potential employees to work on Saturdays, the fact that special arrangements were made for some individuals showed that this requirement did not have to be applied in every case. Barclays’ own evidence showed that it was not proportionate to require all staff to work on Saturdays, only the majority. 

The tribunal did not uphold the harassment claim. Although the incident was “no doubt distressing” to Mrs McDougall, it did not create a degrading, humiliating or offensive “environment” for her. Being upset by the discrimination was not, the tribunal found, sufficient. 

Additional resources

• Line manager briefing on interviewing Employers are liable in law for any discriminatory actions perpetrated by their staff in the course of their employment. This means that if a manager who is conducting recruitment interviews does or says anything that could be construed as discriminatory, the employer will be potentially liable to pay compensation to the victim if a successful complaint is subsequently made to an employment tribunal. 
• The XpertHR FAQs section answers questions on discrimination and recruitment:
• In what circumstances could an employer's requirements and conditions of the job lead to claims of discrimination?
• Can an employer be held liable if an unsuccessful applicant provides evidence that he or she may have been discriminated against during an interview?
• Does an unsuccessful job applicant require concrete evidence to prove that he or she was discriminated against?

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Experience requirement for shortlisting indirectly discriminated against female job applicant

Crilly v Ballymagroarty Hazelbank Community Partnership NIIT/242/11

Date added: 5 January 2012

sex discrimination | recruitment | shortlisting

This Northern Ireland industrial tribunal decision is a good example of how an employer can indirectly discriminate against a female job applicant by making it a requirement to have a number of years' relevant experience within a narrow time frame, something that is more difficult for women who have been raising a family to achieve. 

Mrs Crilly applied for the six-month fixed-term post of neighbourhood regeneration officer with a charity, Ballymagroarty Hazelbank Community Partnership. The employer had as one of its shortlisting requirements that applicants have a "3rd level qualification in a relevant discipline with 2 years' relevant experience in a community development capacity (paid) gained within the last 5 years". 

Mrs Crilly was not shortlisted for the post, with the reason given being that she failed to meet the required experience levels in the previous five years. She had been on a six-year break from paid work due to her childcare responsibilities.  It was accepted by both parties in the tribunal that, during these six years, Mrs Crilly had "continuing, extensive, high-level involvement in the voluntary sector in the area of community development and neighbourhood regeneration". 

Mrs Crilly claimed that it was indirect sex discrimination for the charity to restrict shortlisting to candidates who had two years' paid experience in the previous five years because this requirement had a disproportionate adverse impact on women and could not be justified. 

The industrial tribunal accepted that the "provision, criterion or practice" was the requirement to have two years' paid experience in the previous five years. It found that the relevant pool of comparison was "all suitably qualified candidates both male and female within Northern Ireland who could comply with the criterion apart from the five-year stipulation". The tribunal rejected the employer's argument that the pool should be restricted to those suitably qualified for the position and who could meet the criterion (apart from the impugned element in relation to five years' experience) within the "catchment area" of the post. 

The tribunal also found that the five-year requirement had a disproportionate adverse impact on women and placed them at a particular disadvantage. In reaching this conclusion, the tribunal relied on the Northern Ireland Labour Force survey, which indicates that a much larger percentage of women (90.6%) than men spend time out of the workplace to "look after family and home". The tribunal panel's knowledge of the workforce backed up the claimant's assertion that women are placed at a particular disadvantage by the five-year requirement. 

The industrial tribunal went on to find that the criterion put Mrs Crilly at a particular disadvantage because her relevant paid experience occurred before the five-year period and this meant that she was eliminated at the shortlisting stage. She was unable to proceed to the interview stage to outline how her recent voluntary and other community activities made her a suitable candidate for the job. 

The tribunal considered whether or not the employer could rely on the defence of justification. The employer argued that its legitimate aims included the need to have someone in the job who could:

• perform with minimal supervision; and
• do the job without the need for extensive training ("hit the ground running"). 

The industrial tribunal was not satisfied that the employer's means of achieving its stated aims were sufficiently connected to the aims or proportionate. The employer's argument that it needed someone who could "hit the ground running" was undermined by the fact that its shortlisting requirements allowed someone who had not had the relevant experience for three years (by gaining the required two years' experience in the first two of the five stipulated years) to be shortlisted. In any event, there was a two-month induction period that would have allowed Mrs Crilly to be brought up to speed with any new policies or action plans in the urban regeneration field with which she was not familiar. 

The tribunal estimated that, if she had been shortlisted, Mrs Crilly would have had a 50% chance of being recruited. It awarded her £14,677, which included £5,000 for injury to feelings. 

Additional resources

• How to manage shortlisting The XpertHR "how to" service covers the steps required to produce a shortlist of candidates to take through to the next stage of the selection process. 
• In the employment tribunals Read summaries of more sex discrimination cases from Northern Ireland:
• Care worker wins sex discrimination claim over failure to provide 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. 
• Sex discrimination: inflexible rota system not justified by cost-cutting alone This Northern Ireland industrial tribunal decision is a succinct example of an employer discriminating against a female employee with childcare responsibilities by having inflexible working hours.