Race discrimination: Dismissal following multiple grievances was victimisation

This report relates to 1 case(s)

In Woodhouse v West North West Homes Leeds Ltd [2013] IRLR 773 EAT, the EAT held that the dismissal of an employee who, in good faith, brought multiple ill-founded grievances and tribunal complaints alleging race discrimination amounted to victimisation.

Key points

  • An employer unlawfully victimised an employee by dismissing him after he had brought a long series of grievances and tribunal complaints. The grievances, which all alleged race discrimination, were made in good faith but were found by the tribunal to have been ill founded.
  • The tribunal's findings that the employee had been dismissed because he had lost trust and confidence in the employer, and because the employer wanted to avoid the adverse effects of any more grievances, amounted to a finding that the dismissal was because of past or future protected acts. Accordingly, he had been victimised contrary to s.27 of the Equality Act 2010.
  • The tribunal had erred in law in holding that this case was analogous with Martin v Devonshires Solicitors, in which the EAT held that a dismissal in response to an employee's protected act might not amount to unlawful victimisation where the reason for dismissal was not the act as such but some feature of it that could properly be regarded as separable. That case, which involved an employee making allegations when delusional and psychotic, was exceptional and "cannot be regarded as some sort of template into which the facts of alleged victimisation can be fitted". Here no properly separable factor had been identified as the reason for dismissal.
  • The tribunal also erred by comparing the dismissal with the treatment that a hypothetical employee who had raised multiple grievances, but without any allegation of race discrimination, would have received. Under the Equality Act 2010, the test for victimisation is whether or not the claimant was subjected to a detriment because of doing a protected act. There is no comparative exercise.

Victimisation is defined by s.27 of the Equality Act 2010 as the subjection of a person to a detriment (for example dismissal), because he or she did a protected act - that is, exercised or intended to exercise rights under the Equality Act 2010 (or its predecessors). Previously, the statutory test of victimisation was whether or not the claimant had been treated "less favourably" than others because he or she did a protected act. Protected acts include making allegations of discrimination, and bringing a discrimination complaint in the employment tribunal. However, the protection given by s.27 will not cover a person who makes false allegations in bad faith (s.27(3)).

In this case, the Employment Appeal Tribunal (EAT) considered whether or not the dismissal of an employee who had raised multiple grievances and tribunal claims alleging race discrimination constituted unlawful victimisation.

Facts

Mr Woodhouse, who is black, was employed as a project officer by West North West Homes Leeds Ltd, which manages housing stock for Leeds City Council. In the course of his work he dealt with a surveyor employed by the council, Mr Chapman. He felt that Mr Chapman had shown a racist attitude towards him, and that his manager was also guilty of racist attitudes and had failed to give him the support that he should have received in the situation. The council carried out an investigation but concluded that there had been no race discrimination against Mr Woodhouse. In 2005, he raised a grievance relating to the issues investigated by the council. The grievance was not upheld. In 2006, Mr Woodhouse was told by a colleague that Mr Chapman had made racist remarks about him, and as a result he raised a second grievance, which, again, was not resolved in his favour. Further grievances followed, and by 2010 Mr Woodhouse had raised a total of 10, all of which centred on allegations of race discrimination relating to a variety of issues including: alleged remarks made on a number of occasions; sick pay relating to his extended absence from work because of stress; his duties on his return from sick leave; a suggestion by his employer that he might benefit from cognitive behavioural therapy; and delays in dealing with his grievances. The grievances were investigated through the employer's procedures and all were ultimately rejected. During this period Mr Woodhouse also brought several claims in the employment tribunal against Leeds City Council, Mr Chapman and the employer, complaining of race discrimination, harassment and victimisation.

Shortly after Mr Woodhouse had lodged his seventh tribunal claim, the employer decided that the extent of his disaffection and loss of faith in the organisation was so great that he could not realistically continue in employment. An occupational health report concluded that his ongoing negative view of his employer would cause his stress-related illness to continue. He was suspended and invited to a meeting to discuss his future, the result of which could, he was told, be dismissal with pay in lieu of notice. The meeting resulted in the dismissal of Mr Woodhouse on 28 October 2010 on the ground that he had lost all trust and confidence in the employer and that it was no longer possible to sustain a working relationship for the future. Mr Woodhouse complained of unfair dismissal.

Tribunal decision

The tribunal upheld some of the claims against Leeds City Council, but dismissed all the discrimination, harassment and victimisation complaints against the employer.

The tribunal rejected Mr Woodhouse's submission that the dismissal was an act of victimisation. It noted that, as the date of dismissal was after the Equality Act 2010 had come into force, the claims relating to the dismissal fell to be dealt with under that Act, whereas the other complaints of discrimination, harassment and victimisation had to be dealt with under the Race Relations Act 1976. The relevant statutory provisions differed only in respect of the victimisation test, with no comparative exercise required under the Equality Act 2010. Notwithstanding this, the tribunal said: "We are persuaded by the [witnesses'] explanation to find that their decision to suspend and subsequently dismiss Mr Woodhouse was not taken on racial grounds to any extent. We find that a comparable employee, who had evinced similar profound and long-standing lack of faith by submitting similar ill-founded grievances, but without any racial connotation, would have been similarly treated." It went on to say, however, that in view of its findings of fact nothing turned on the different statutory tests.

The tribunal thought that there was clear and compelling evidence that there had been no victimisation. While it held that the initial complaint about Mr Woodhouse's treatment at the hands of Mr Chapman had been well founded, his subsequent grievances and complaints had been shown to be false. He had become obsessed, with the rejection of one complaint inevitably leading to the next, and the employer had reached the point where it was no longer prepared to risk further damaging and time-consuming allegations from him. The tribunal said that it was drawing a distinction between the context in which various comments were made and the grievances themselves, and on that basis concluded that this case was "on all fours" with Martin v Devonshires Solicitors EAT/0086/10. In that case, the EAT held that an employer's dismissal in response to an employee's protected act might not amount to unlawful victimisation where the reason for dismissal was not the protected act as such but rather some feature of it that can properly be treated as separable, for example the manner of the complaint. The tribunal in Mr Woodhouse's case appeared to reason that it was the distinctive repeated pattern of grievances, which were exhaustively investigated and objectively demonstrated to be false, that enabled it to conclude, relying on the reasoning in Martin, that this was not a case of victimisation.

By a majority it upheld the unfair dismissal complaint. The tribunal reasoned that an employee's total loss of trust and confidence in the employer could amount to "some other substantial reason" for dismissal, and there could reasonably come a time when the employer could say "enough is enough" where the succession of unfounded grievances were having an adverse impact on it and other employees. However, it concluded that in this case the employer had acted unreasonably in not warning Mr Woodhouse that this behaviour could lead to dismissal, or at least giving him an opportunity to change his conduct. The tribunal reduced Mr Woodhouse's compensation by 90%, having decided that he would have had a very small chance of remaining in his employment given his pattern of behaviour and his stress-related ill health.

Mr Woodhouse appealed to the EAT against the tribunal's ruling that the dismissal was not an act of victimisation, and against the reduction of his compensation for unfair dismissal.

EAT allows appeal

Mr Woodhouse submitted that the tribunal had clearly conducted a comparative exercise when considering victimisation in the context of his dismissal, when it should have asked itself whether or not the dismissal had been because he had done a protected act. Mr Woodhouse also argued that the tribunal had been wrong in law to equate his case with Martin. Distinctions should be drawn between complaints and the manner of making those complaints only in exceptional circumstances such as those in Martin, where an employee had raised numerous ill-founded grievances while in a psychotic and delusional state.

The EAT agreed that the tribunal had adopted a comparative approach, and that this had been an error of law. It then considered the tribunal's assertion that its finding of no victimisation was based on its findings of fact in relation to the grievances.

The EAT observed that, as there was no appeal against the tribunal's rejection of the claims of race discrimination in the context of those grievances, it must accept the tribunal's conclusion that, apart from the first two, they were "ill founded ... substantially without any evidential basis". The EAT noted that there was no suggestion in this case that Mr Woodhouse had made his allegations of discrimination in bad faith. Had they been made in bad faith they would not have been protected acts for the purposes of s.27 of the Equality Act 2010. However, the tribunal found that the dismissal was not because of the protected acts, nor because of Mr Woodhouse's conduct in bringing the grievances, but because of his loss of trust and confidence. The EAT highlighted a number of inconsistencies in the judgment, where the tribunal seemed to reject and then acknowledge the adverse impact of the repeated grievances as a factor in the dismissal.

Concentrating its attention on the tribunal's reliance on Martin, the EAT noted that central to that ruling was the need for a feature, "genuinely separable" from the protected act itself, to which the employer responded. It was not clear to the EAT what that feature was found to be in Mr Woodhouse's case. Although an employee's conduct or behaviour in making a complaint may constitute a separable feature, the EAT in Martin sounded a note of caution where an employer seeks to rely on the manner of a complaint in this context. In Martin there was a collection of separable features, some of which related to past and possible future behaviour, and some of which related to the employee's state of mind as assessed both subjectively by the employee and objectively by medical experts. In Mr Woodhouse's case the tribunal seemed to rely on a mixture of his state of mind and the future impact of his behaviour.

The EAT added a further note of caution about the application of Martin, which could not be regarded as "some sort of template into which the facts of cases of alleged victimisation can be fitted". Martin was an exceptional case and the process of measuring cases against such a yardstick was a dangerous one. Any employer accused of discrimination could take the view that the allegation was wholly unreasonable or irrational. It would be a "slippery slope" towards neutering the concept of victimisation altogether if the irrationality and multiplicity of grievances could lead, as a matter of routine, to the case being placed outside the scope of s.27 of the Equality Act 2010. This was all the more so when the origin of the problem is established, as here, to have been a real, as opposed to imaginary, act of discrimination.

The EAT concluded that Mr Woodhouse's case was not analogous with Martin. The tribunal found that he had made allegations of discrimination in the past that had proved unjustified, and that his state of mind was such that he was likely to do so in the future. The employer's position that Mr Woodhouse was dismissed because he had lost trust and confidence when coupled, as the tribunal found it to be, with the avoidance of further allegations by terminating the employment amounted to Mr Woodhouse's being dismissed, if not because of past protected acts, then because of the likelihood of future protected acts. On the tribunal's own findings of fact that amounted to victimisation within the meaning of s.27 of the Equality Act 2010. The tribunal was wrong to conclude that there were genuinely separable reasons on which to base its rejection of the victimisation claim.

Accordingly, the EAT allowed the appeal, substituting the finding that Mr Woodhouse had been victimised by his suspension and dismissal, and that the reduction in the unfair dismissal compensation was unsustainable.

Comment

This case demonstrates that Martin did not create a general exception to the rule against victimisation where the protected acts committed by the employee are simply unreasonable. Something far more is needed to meet the "properly separable" test. It is worth noting that the EAT in Martin itself made the same point, warning that tribunals should be slow to draw a distinction between a complaint and the way it is made except in clear cases.

The difficulty created for employers is what to do in a situation where the employment relationship is clearly breaking down amid what the employer considers to be unfounded allegations of discrimination. With no test of justification available in a victimisation case, the employer appears to be faced with a difficult choice between simply dealing with an allegation as it comes along - no matter how disruptive - or accepting the potentially expensive legal consequences of ending the employment. Of course, it could be that this is the sort of case where mediation would be helpful, but it is just as likely that any mediation process would simply result in further allegations. The position of an employer dealing with multiple and repeat allegations of discrimination is not an enviable one.