In the employment tribunals: June 2012

XpertHR provides summaries of recent employment tribunal rulings. 

Age discrimination: employment tribunal strikes out job applicant's claims against eight schools
Disability: tribunal recommends that retailer Iceland train HR staff and senior management in mental health issues
Tribunal recommends maternity rights training in company where employee given work two days after giving birth

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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Age discrimination: employment tribunal strikes out job applicant's claims against eight schools

Tomlinson v Governing Body of Queensbridge School and others ET/1307306/2011 and other cases; Tomlinson v Hays Specialist Recruitment Services Ltd ET/1901218/2011

Date added: 21 June 2012

age discrimination | recruitment | striking out

An employment tribunal has taken the unusual step of striking out discrimination claims against eight schools brought by a teacher whom it suggested genuinely believed that he had been discriminated against. The tribunal struck out the claims on the basis that they had "no reasonable prospect of success", but was reluctant to find that they were "vexatious". 

Mr Tomlinson was born in 1956 and had been in the teaching profession for many years. After working in higher education until 2008, he became a supply teacher, mostly for secondary schools. He had short-term assignments in 12 schools from 2008 to 2011, plus one contract as a foreign-language consultant. 

Mr Tomlinson applied for positions with eight schools in the Birmingham area, most of which were permanent. The schools' standard application forms, which comply with Department for Education guidance, ask for, among other things, the applicant's date of birth and a detailed history of education and experience in the sector. The explanatory notes for the application form explain that asking for the applicant's date of birth is necessary to ensure that he or she is correctly identified for background checks to work with children. The guidance advises that incomplete application forms should not be accepted and discourages applicants from attaching a CV. 

The pattern for each of Mr Tomlinson's applications was similar. In most of his applications, Mr Tomlinson failed to complete large sections of the application form, including his date of birth, education history, experience and "information in support of his application". Instead, he attached his CV and included a covering letter explaining his belief that "language teaching in the UK is in crisis". He was not shortlisted for any of the positions, and followed up his rejection with complaints to the schools and freedom of information requests about the ages of successful applicants to the schools in recent years. 

Mr Tomlinson, who argued that he had sent "detailed" application forms and "thoughtful" application letters brought claims of age discrimination against the eight schools (and one of sex discrimination against the eighth respondent) in the Birmingham employment tribunal. Mr Tomlinson brought a separate claim in the Leicester employment tribunal against recruitment agency Hays Specialist Recruitment Services Ltd, which had assisted the fourth respondent in its recruitment process. 

The Birmingham tribunal, which judged the eight claims together, heard from five of the schools' headteachers and an HR practitioner with Birmingham City Council. The tribunal decided that Mr Tomlinson's claims against the schools should be struck out as having no reasonable prospect of success. In exercising its power under rule 18(7) of sch.1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861), the tribunal recognised that discrimination cases, which are often fact sensitive, should be struck out only in the most obvious cases. However, the claimant must have "a realistic as opposed to a merely fanciful prospect of success" to be allowed to proceed with a claim. The tribunal noted that it is not legitimate to allow a claim in which no evidence has been presented to go ahead "in the hope that something may turn up in cross examination". 

The employment tribunal concluded that, other than his age and the failure to shortlist him, Mr Tomlinson had not provided any facts from which the tribunal could draw an inference of age or sex discrimination that would shift the burden of proof to any of the respondents. The tribunal said that Mr Tomlinson's assertion that he should have been shortlisted because his application forms were "detailed" and his covering letters "thoughtful" was "manifestly untrue". The tribunal said that his "generic approach" applying for the positions had shown a "lack of insight" into what a prospective employer might want. 

The tribunal stopped short of deciding that the claims were "vexatious", concluding that Mr Tomlinson's intentions in applying for the positions were genuine and arose from a "misplaced optimism that his manifest shortcomings in appropriate secondary school education would be overlooked or overcome". Mr Tomlinson's belief that he was discriminated against was genuine, but unsupported by any evidence. 

In the separate claim in Leicester, the employment tribunal regretted that the claim against Hays Specialist Recruitment Services Ltd was not consolidated with the other claims in Birmingham. The tribunal did not find out about Mr Tomlinson's other claims until the day of the hearing. In any event, the employment tribunal held that the role of the recruitment agency's senior account manager, Mr Sherwin, was simply that of "conduit pipe". The recruitment agency did not play any part in the shortlisting process. It simply provided the school with the candidates to be shortlisted. The tribunal said that Mr Tomlinson had put forward "not a shred of evidence" that the recruitment agency's role had been tainted by age discrimination. 

Additional resources

• EAT bans serial claimant from bringing employment tribunal proceedings The Employment Appeal Tribunal in Attorney General v Bentley banned a serial claimant from bringing claims with a restriction of proceedings order. Mr Bentley brought 31 sets of proceedings against at least 44 employers across England. 
• Keane v Investigo and others In this case, the Employment Appeal Tribunal held that an experienced accountant who applied for jobs aimed at recently qualified accountants that she did not genuinely want was unable to complain of having suffered any disadvantage when she was not put forward for them. 
• The XpertHR FAQs sections answers these frequently asked questions: 
  • What is the maximum amount of a deposit order? 
  • What can an employment judge do if he or she believes that a claim has little prospect of success?

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Disability: tribunal recommends that retailer Iceland train HR staff and senior management in mental health issues

Crisp v Iceland Foods Ltd ET/1604478/11 & ET/1600000/12

Date added: 13 June 2012

disability discrimination | unfair dismissal | mental health | recommendations

This is a rare example, along with Stone v Ramsay Health Care UK Operations Ltd ET/1400762/11, of an employment tribunal making wide-ranging recommendations to an employer, in this case asking it to provide equal opportunities training for sections of its HR function and senior management. 

Ms Crisp worked on the tills for Iceland Foods Ltd. She suffered from panic attacks and it was common ground that she is disabled for the purposes of the Equality Act 2010. She left an Iceland store in Essex after suffering from panic attacks, but got another position with the company in a store in South Wales. She informed the company of her disability at the interview stage. 

About 18 months into her new position, Ms Crisp became seriously ill and had to take time off work. She required support from her husband and mother to manage her medication and deal with the panic attacks. Although Ms Crisp sent sick notes to her employer via her husband and mother, they did not all reach the appropriate manager. It also appears that the company did not have Ms Crisp's up-to-date address in its personnel files, which meant that she could not be contacted and management assumed that she was absent without leave. 

The employer initiated its procedure for dealing with unauthorised absences, resulting in the decision to dismiss Ms Crisp. She was unaware of this decision until her husband contacted the company to enquire why she had not been paid. Ms Crisp was subsequently sent a letter outlining the reason for her dismissal. 

Ms Crisp appealed against her dismissal on the basis that she had:

• been genuinely ill;
• provided sick notes; and
• not received any correspondence relating to the disciplinary process. 

A dispute arose prior to Ms Crisp's disciplinary appeal hearing about whether or not her husband could accompany her at the hearing. Mr Evans, the claimant's area manager, told her that her husband could not accompany her because the employer's policy allowed only work colleagues or union representatives as companions at disciplinary hearings. 

Mr Evans and Ms Newbery, the area HR manager, accidentally left a recording of a conversation that they had about the appeal hearing on Ms Crisp's home answer phone. The tribunal noted that, while they had meant to leave a message, they had left a recorded conversation that appeared to make light of Ms Crisp's disability and express amusement at how she might react in the appeal hearing. The tribunal said that the exchange included:

• a statement from Mr Evans that Ms Crisp's husband could not attend the appeal hearing;
• a dismissive reaction from Ms Newbery after Mr Evans' statement;
• Mr Evans saying that Ms Crisp "will spring a fucking fuse and have a panic attack and that will be the end of that"; and
• laughter from Ms Newbery in response to what Mr Evans had said about Ms Crisp having a panic attack. 

The employment tribunal noted that Mr Evans had undergone no equality training. The tribunal said that it would have expected Ms Newbery, as an HR professional, to have shown a better understanding of disability issues, and that her awareness of mental health issues was "no less than woeful". The tribunal concluded that Mr Evans and Ms Newbery had used inappropriate humour to disguise the difficulty that they were having in dealing with the claimant's condition. 

Ms Crisp was very upset after hearing the recording and, according to her mother, there was a marked deterioration in her condition. Ms Crisp formed the view that she was seen in the workplace as "a crazy mental person". 

The appeal meeting with Mr Evans went ahead, with Ms Crisp's mother required to wait outside. In the appeal meeting, Ms Crisp said that she was not sure that she wanted to continue to work for the employer. Ms Crisp attempted to raise the issue of the recorded conversation, but the company made no further enquiries about this, despite the distress that this had clearly caused to her. The only explanation that Mr Evans could give to the tribunal for not dealing with the recording was that he did not want to upset Ms Crisp further. 

The appeal was upheld and, despite being given the opportunity to move to another store, Ms Crisp told the HR department that she did not want to return to work and would be pursuing an employment tribunal claim. 

The employment tribunal upheld Ms Crisp's claims for:

• constructive dismissal, on the basis that she had resigned in response to management's indication that it did not take her disability seriously, which had damaged the implied term of trust and confidence;
• disability harassment and direct disability discrimination, as a result of the recorded conversation that had been left on her answer phone; and
• failure to make reasonable adjustments when she was not allowed to be accompanied at the appeal meeting by her husband or mother. 

The employment tribunal took the unusual step of recommending that, by 23 May 2013, the employer:

• require all members of the HR function who provide guidance to managers on disciplinary and grievance procedures to undergo training in disability discrimination matters, specifically issues related to mental health; and
• require all managers at Mr Evans' level of management to undergo training in disability discrimination matters. 

In addition, the employment tribunal ordered the company to pay £7,729.53 to Ms Crisp. This included £7,000 for injury to feelings. 

Additional resources

• What new powers does the Equality Act 2010 confer on employment tribunals? The XpertHR FAQ section answers this question on the Equality Act 2010. 
• 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. 
• Lycee Francais Charles De Gaulle v Delambre EAT/0563/10 In this case decided under pre-Equality Act legislation, the Employment Appeal Tribunal held that the employment tribunal was entitled to impose a wide range of recommendations on a school that it found had committed age discrimination, including requiring a review of many of its policies by an HR professional. 

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Tribunal recommends maternity rights training in company where employee given work two days after giving birth

Stone v Ramsay Health Care UK Operations Ltd ET/1400762/11

Date added: 13 June 2012

pregnancy discrimination | maternity leave | recommendations

This is a rare example, along with Crisp v Iceland Foods Ltd ET/1604478/11 & ET/1600000/12, of an employment tribunal making wide-ranging recommendations to an employer, in this case suggesting that it provide training for its managers and HR team on maternity rights. 

Mrs Stone was a general manager at Winfield Hospital in Tewkesbury. Her employer owns 23 hospitals and has an annual turnover of about £350 million. The tribunal found that the view within this organisation was that it is "unprofessional for senior managers to take more than ordinary maternity leave". The tribunal heard evidence that Ms Terblanche, the interim general manager and the claimant's maternity cover, had expressed a view that it is "ridiculous for a woman to take 12 months' maternity leave". The tribunal also heard from Mrs Stone that a colleague told her that Mrs White, the claimant's line manager, had "gone ballistic" when the claimant had taken additional maternity leave. 

The tribunal noted that, although the company's equal opportunities policy purported to protect employees on the grounds of nine protected characteristics, "pregnancy and maternity" was not one of them. 

Mrs Stone brought claims in the employment tribunal, including a claim for pregnancy and maternity discrimination under s.18 of the Equality Act 2010. Her claims related to events that occurred from when she went on maternity leave until her resignation. The employment tribunal, which was particularly unimpressed that Ms Terblanche (who still worked for the employer at the time of the hearing) had not given evidence for the employer, generally preferred Mrs Stone's evidence. The tribunal's findings included the following:

• In September 2009, Mrs Stone informed Mrs White, her line manager, that she was pregnant. Mrs Stone was due to go on maternity leave on 20 February 2010, but illness meant that she commenced her maternity leave on 5 February. 
• Mrs Stone did not manage to speak to Mrs White on her last day before her maternity leave. Mrs White, who did not return a call from the claimant, failed to agree arrangements to keep in touch during maternity leave. The tribunal found this to be "symptomatic of...a very haphazard and lackadaisical approach" to making arrangements for the claimant's maternity leave. 
• Mrs Stone gave birth by caesarean on 8 February. On 10 February, Ms Terblanche emailed Mrs Stone, who was still in hospital and taking strong painkillers, to ask her for her views on some work-related issues. 
• While Mrs Stone had indicated to Ms Terblanche that she would like to be copied in on relevant work emails, the claimant had not at any point said that she would provide support for Ms Terblanche. 
• Mrs Stone, who read the email on her Blackberry, did not respond immediately. However, by 15 February, her "conscience got the better of her" and she responded to what the tribunal described as a "relatively complicated" query. 
• Mrs White's curt response to Mrs Stone's reply on 15 February led the claimant to believe that her input was not appreciated. Mrs Stone was surprised not to be thanked for going out of her way to respond so soon after giving birth. 
• Ms Terblanche continued to email Mrs Stone for advice. While the claimant initially did her best to respond, she stopped checking her work emails from mid-March to concentrate on caring for her child. 
• In May 2010, Ms Terblanche raised a formal grievance with Mrs White about Mrs Stone. Ms Terblanche's complaint was that Mrs Stone had been "aggressive" towards her and critical of the employer when she visited the hospital with her baby in March. The tribunal believed that Ms Terblanche blamed the claimant for "not giving her the support that she demanded". Mrs White did not inform Mrs Stone at this stage about the grievance. 
• In May 2010, Ms Terblanche secured a move to another of the company's hospitals. Neither Ms Terblanche nor Mrs White informed the claimant of this development, something that the tribunal felt would have been the "normal and courteous" thing to do. 
• In late May 2010, Mrs Stone indicated her wish to take additional maternity leave. When the issue of keeping-in-touch days arose, Mrs White suggested that, rather than attend Winfield Hospital, the claimant should attend regional meetings in London. Mrs White also suggested that she could meet Mrs Stone for an off-site keeping-in-touch day. The tribunal noted that Mrs White was clearly trying to prevent the claimant from going to Winfield Hospital, to avoid a confrontation with Ms Terblanche. The claimant, who was breastfeeding by this stage, declined because of the four-hour round trip that this would involve.  The tribunal found Mrs White's suggestion to be typical of her "failure to appreciate the responsibilities of a mother to a newborn baby and the responsibilities of an employer to such a person during her maternity leave". 
• By this stage, Mrs Stone had become concerned at her treatment and feared for her job. She contacted the HR department, which acknowledged that the suggestion of an off-site keeping-in-touch day "seemed a little strange". However, the HR department failed to realise that Mrs White's suggestion was contrary to the employer's policy on keeping in touch during maternity leave. 
• In mid-July, Mrs White informed Mrs Stone that a complaint had been raised against her, although it was a further six days before the claimant was given details of the complaint. This was some six weeks after Ms Terblanche had raised the grievance. 
• In mid-August, Mrs Stone wrote a letter complaining of her treatment and querying why she had not been included in a pay review that had taken place. Although the claimant had an "uncomfortable" meeting with Mrs White at the end of September, no further action was taken and a promised investigation did not materialise. 
• Mrs Stone returned to work in January 2011. She determined to resolve the grievance against her. Mrs White's response to her queries was that the complaint was "nothing more than hearsay" and that the matter should be dropped. The tribunal concluded that, in keeping with her "ineffectual management style", Mrs White had simply decided that it was "too complicated" to investigate a grievance that Ms Terblanche was no longer keen to pursue. 
• In March, Mrs Stone raised a grievance that set out the history of her treatment. Mrs Watts, the company's CEO, conducted an investigation, but failed to interview the claimant. Mrs Stone's grievance was rejected and she was told that an appeal against this decision would not be entertained. 
• Mrs Stone resigned at the end of April 2011. 

The employment tribunal held that Mrs Stone had provided a wealth of evidence that she had been unfavourably treated because of her pregnancy and maternity leave. The employer had failed to provide an adequate explanation for Mrs Stone's treatment. The tribunal was particularly critical of:

• a worrying lack of understanding at senior level of the employer's maternity policies;
• the exclusion of pregnancy and maternity as a protected characteristic from the employer's equal opportunities policy;
• the failure to recognise, even at the tribunal, the significance of the employer's failings towards Mrs Stone;
• Mrs White's ignorance of the employer's keeping-in-touch policy; and
• the HR department's relaxed approach to Mrs White's breach of the maternity policy on keeping in touch during maternity leave. 

The employment tribunal felt that many of the problems that arose could have been avoided if Mrs White had taken a more conscientious approach to discussing keeping-in-touch arrangements before Mrs Stone went on maternity leave. The tribunal was shocked by the management's "total blind spot" in relation to the "glaringly obvious reality" that it is entirely inappropriate (and indeed a criminal offence) to ask an employee to work just two days after she has given birth. 

Unusually, the employment tribunal exercised its power under s.124(3)(b) of the Equality Act 2010 to issue recommendations relating to the employer's whole workforce. The employment tribunal recommended that the employer:

• appoint external consultants within six months to implement a programme of training for all managers and the HR team on its existing maternity policies and legal obligations during the "protected period" of maternity leave under the Equality Act 2010, with the training to be completed within a 12-month period; and
• redraft its equal opportunities policy to include pregnancy and maternity as a protected characteristic. 

The employment tribunal also awarded Mrs Stone, who had not lost any earnings because she had found another job, £18,000 for injury to feelings. 

Additional resources

• What new powers does the Equality Act 2010 confer on employment tribunals? The XpertHR FAQ section answers this question on the Equality Act 2010. 
• 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 stay in touch with employees on maternity leave The XpertHR "how to" service provides guidance on the issues to be taken into account when staying in touch with employees on maternity leave.