MARKS V DERBYSHIRE HEALTHCARE NHS FOUNDATION TRUST (Sexual Harassment)
In this 2016 Sexual Harassment Case Mrs Marks, former HR Director of that Trust, was awarded £830,000 in compensation by a Tribunal. More details to follow.
MICHALAK V MID YORKSHIRE HOSPITALS NHS TRUST (Race and Sex Discrimination)
In December 2011 this NHS case of Race and Sex Discrimination cost the Trust £4.5million.
HAIRDRESSER WINS £20,500 (Sexual Harassment Case)
In February 2013 a trainee claimed her manager offered her £10,000 to sleep with him and deliberately dropped his comb to watch her pick it up.Trainee hairdresser Maryam Mashayekhi has won £20,500 compensation from salon owner Christopher Story at an employment tribunal. Maryam Mashayekhi, 34, who is originally from Iran and worked at a Toni and Guy salon, said she suffered months of racial and sexual harassment from her married manager. Christopher Story, 39, a father-of-two, is said to have made her the “indecent proposal” in his car and joked to clients she had been a “prostitute” before coming to England. He is said to have also deliberately dropped his comb in the salon to make Mrs Mashayekhi pick it up and asked her explicit questions about sexual relationships in Iran. Mr Story denied all the allegations but an employment tribunal found that he had engaged in “inappropriate conduct” relating to Mrs Mashayekhi’s sex and race leaving her humiliated and her confidence shattered. The most serious incident involved Mr Story handed her some cash and pushing her head to his groin as they sat in a car outside a client’s home.
MASINI V COMPASS GROUP UK & IRELAND LIMITED (SOSR)
(Some Other Substantial Reason).
In this important case, the employer was found to have ‘fairly dismissed an employee’ for SOSR; ‘some other substantial reason’ (neither the employer nor employees fault), in a case where the client refused to have an employee back on its work site. Simply, the client issued instruction that the employee should not be allowed on their site, preventing the employee from carrying out her duties. This is not an unusual or unheard of situation but it is an extremely difficult situation to manage. This ruling does not help matters in cases where a client raises objection about a particular employee.
JUSTICE FOR DINNER LADY WHO TOLD PARENTS THEIR CHILD WAS BEING BULLIED AT SCHOOL
This is a shocking case from 2013. A school dinner lady who was unfairly sacked after telling a seven-year-old girl’s parents that their daughter had been tied to a fence and hit with a skipping rope has won her two-year battle for compensation.The decision by an Essex primary school to sack Carol Hill for blowing the whistle on the playground bullying incident was ruled unfair in 2011 but a tribunal decided to slash her compensation because she had spoken to the press. But that has now been overturned by an appeal tribunal in a decision welcomed by Mrs Hill, 64, as a “step closer to justice”. A further hearing must now be held to determine a new payout. Mrs Hill had been suspended and later dismissed over “breach of confidentiality” after telling a pupil’s mother and father about the playground bullying incident in June 2009. An employment tribunal at Bury St Edmunds, Suffolk, ruled in January 2011 that the school had not carried out a “fair, proper and reasonable” investigation before dismissing her. She was awarded just £351.82, including just over £300 in back pay and £49.99 in “compensation”. The case continues. The girl’s parents were furious and have since withdrawn their children from the school.
THE MANCHESTER COLLEGE – TUPE CASE
It is quite rare but here is proof that a Judge will occasionally make an order for reinstatement in TUPE cases. It was decided that there should be re‑engagement by way of recognising the breach of TUPE that has occurred here. For the full case see here; http://www.bailii.org/uk/cases/UKEAT/2012/0642_11_0907.html
ASDA BULLYING CASE
A stuttering Asda worker who claims he was sacked over his speech impediment launched a campaign of harassment against a colleague an employment tribunal heard (12 September 2012). For the full story click here; http://www.dailymail.co.uk/news/article-2202140/Asda-Worker-Adnan-Malik-claims-sacked-speech-impediment-bullied-colleague-confrontations.html?ito=feeds-newsxml
ROYAL MAIL RACISM
In August 2012 a bungled racism case cost Royal Mail big tribunal payout. Employer investigation into complaint ‘shambolic,’ says EHRC . A Royal Mail employee who blew the whistle on racism at his workplace but was then sacked is believed to have won £100,000 compensation in an employment tribunal. Abdul Musa, a former worker at a RM depot in Blackburn, reported racist behaviour at the depot to managers, which resulted in one worker being sacked and others disciplined. However, following his complaint, Musa was victimised by remaining colleagues as managers failed to protect or support him, the tribunal heard. He was then sacked in 2007 and claimed both race discrimination and unfair dismissal. The tribunal found failings in the employer’s internal investigation, which it said had not examined complaints that union representatives from the Communication Workers Union had backed an unofficial campaign to have Musa sacked by fabricating evidence. The tribunal judgement said RM’s managers had viewed Musa as “a problem” in terms of the negative reaction of other workers, which could only be solved by dismissing him. The Equality and Human Rights Commission (EHRC), which funded Musa’s legal representation, called RM’s internal inquiry into the complaint “shambolic”.
John Wadham, general counsel for the EHRC, said: “The Equality Act protects people from being victimised for making complaints about any form of discrimination in the workplace. It also says employers have a responsibility to take complaints seriously and to put a stop to discrimination.
“The fact that his colleagues were acting unlawfully was not enough to stop them from victimising Mr Musa. People facing discrimination also need an advocate, such as the EHRC, to make sure that the law is obeyed.”
A spokeswoman for the union said there were no charges against the CWU or its representatives in the case. “We have a long standing record of successfully representing our members in cases of this nature and want to see racism stamped out in all workplaces,” she added.
DISCRIMINATION DUE TO PARTNER’S DISABILITY: Aug 2012
As this case demonstrates, it is unlawful for an employer to discriminate against an employee by treating him or her less favourably than others because of someone else’s disability. http://www.xperthr.co.uk/article/114101/employee-discriminated-against-because-of-his-wifes-disability.aspx
DEARNE CARRFIELD PRIMARY SCHOOL V ANNA YERRAKALVA
In April 2012 a Teacher who lied about an accident at work and took six years off sick on full pay has been lambasted by an employment judge. The Judge said Anna Yerrakalva told a ‘series of lies’ that left her credibility in tatters. An investigation found her injury claim about being pinned down in the classroom was made up. The widow, 58, then won her unfair dismissal and victimisation claim – but was denied compensation. This is an appalling example of poor management. What happened to the School’s absence management policy? Anna Yerrakalva, who had brought an unfair dismissal claim in 2010, won the case on a technicality in April 2012 – but was told she would receive no compensation because of her lies. The case has cost taxpayers around £300,000.
CENTRAL MANCHESTER UNIVERSITY NHS TRUST; EX-EMPLOYEE AWARDED £1M COMPENSATION
A former NHS worker was recently awarded £933,115 in compensation after an employment tribunal found that he had been subject to racial discrimination and unfair dismissal. Elliot Browne was a divisional director at Central Manchester University NHS Foundation Trust until he was dismissed in 2008. Browne told an employment tribunal that he had been the victim of “discriminatory treatment” in the final year of his employment at the trust and had been unfairly dismissed. The tribunal found that Browne had suffered “systematic discrimination” and “an intimidating environment” in his role, and that after Browne had raised a grievance the trust had failed to take it seriously or investigate it sufficiently. Browne claimed that the treatment severely affected him and left him close to a “mental breakdown.” Despite the trust’s claim that it believed strongly that discrimination was not a factor in the case. The tribunal awarded Browne £933,115for unfair dismissal, aggravated damages and loss of earnings and pension. Unite, which represented Browne in the tribunal, called for the trust to “tackle its culture of institutionalised racism“. The expenditure of almost £1 million of taxpayers’ money could have been avoided if this employer had just followed its own policies and procedures – experts say.
DAWSON V CHIEF CONSTABLE OF NORTHCUMBRIA POLICE
Collusion and Collective Bullying: Under The Protection from Harassment Act 1997, in light of this case (Case Ref: 209 EWHC 907 QB), employers are vicariously liable for harassment caused by the acts of two or more employees, provided the conduct is linked. Employers. If you are aware of allegations of bullying within a team, or department, involving more than two employees, you need to familiarise yourself with this case.
BT LOSE SEX DISCRIMINATION CASE. £290,000
September 2011 : A telesales worker who was sexually harassed by her manager has won a £290,000 payout from British Telecom – the highest employment tribunal award in the past year. Petrina Taylor, 36, complained about her ordeal at the hands of ‘dangerous’ sex pest boss Craig Alcock – but BT’s response was ‘woeful’, a tribunal ruled. Miss Taylor had to endure boss Mr Alcock ‘thrusting’ himself at her and female colleagues and was warned by him that if she failed to land a deal he would perform a sex act over her. When she asked for time off to see her doctor over her contraception, he replied: ‘What are you telling me for? I’m not shoving it up you.’ Mr Alcock branded Miss Taylor’s team ‘sheep shaggers’ and ‘inbreds’ and described pregnant women as a ‘nuisance’.
Up to ten other women have sued BT recently for sexual harassment that they allegedly suffered at the hands of a number of different men while working for its ‘Customer Street’ telesales operation. The firm has settled several cases out of court.
What is going on? These cases including; legal costs, disruption to the business, management time, settlement fee’s, re-recruitment costs, management training etc etc., must have cost BT in excess of £2M.
In this case it seems, both a grievance and disciplinary might have been heard together. See the Overlapping Dispute Rule on our Employment Law page.
LONDON TATE GALLERY V LEWZEY : SEPTEMBER 2011
The London Central Employment Tribunal found that The Tate Gallery unfairly dismissed a gallery attendant because it did not properly investigate her allegations of bullying by managers. Judge Lewzey decided the Tate did not follow a fair procedure when examining accusations of mistreatment by Anne Taylor, 61, who was sacked from Tate-Britain in London in December. Ms Taylor was dismissed after a row with managers after she was caught away from her post chatting to a security guard last August. She was suspended while the matter was investigated and then sacked. She accused the Tate of “bullying and harassment” in her evidence to the tribunal, saying she had been reprimanded in public, intimated by managers and “treated like a criminal”. She claimed she had since suffered panic attacks, anxiety and depression, and was unemployable.
The Tate accused her of “acting inappropriately” while on duty and for speaking to managers in a “disrespectful and condescending manner”. The tribunal ordered the Tate to pay Ms Taylor £2,173, a reduced amount because it said her behaviour contributed to her dismissal.
2011: GOSDEN V LIFELINE PROJECT LTD (Unfair Dismissal: Social Media case).
This is an important case of cyber-abuse. Gosden v Lifeline Project Ltd provides a warning as to the repercussions an employee may face when their private use of social media has the effect of damaging the reputation of their employer and/or breaching an equal opportunities policy. This case involved Mr Gosden, an employee of Lifeline, bringing a claim for unfair and wrongful dismissal to the Employment Tribunal, after an internal disciplinary hearing found him guilty of gross misconduct and accordingly, dismissed him. The gross misconduct at issue was that he forwarded an offensive email from his home computer and outside working hours to the home computer of Mr Yates, a colleague, based in Moorland Prison, where Mr Gosden had previously been assigned. The email entitled “The British are Way Ahead of Us” contained material of a racist and sexist nature and was of the chain email variety, headed with the words “It is your duty to pass this on!” Mr Yates forwarded the email to a colleague. The Employment Tribunal dismissed Mr Gosden’s claims for unfair and wrongful dismissal as the reason for his dismissal was reasonable and the manner in which he was dismissed was fair. What is particularly interesting is that the Employment Tribunal went on to consider what impact, if any, the Human Rights Act had to a private life, holding that the email in question, whilst it was sent from his home computer to another home computer, was not intended to be private due to the fact it was headed “It is your duty to pass this on!” and Mr Gosden was aware that it was likely to be passed on.
This decision suggests that employees, who mindlessly forward chain emails outside work, must first consider whether the email in question may have the effect of bringing their employer’s reputation into disrepute or breach their employer’s equal opportunities policy, therefore putting their employment in jeopardy.
2011: EZSIAS V NORTH GLAMORGAN NHS TRUST
SOSR (Dismissal for breakdown of relationship is found to be fair). In the recent case of Ezsias v North Glamorgan NHS Trustthe EmploymentAppeal Tribunal (“EAT”) found that an employee who was dismissed for being responsible for a breakdown in relationships with colleagues was fairly dismissed. This case continues to attract much interest. Employers will be aware that for the dismissal of an employee to be fair they will need to have a fair reason and have acted reasonably in treating that as a fair reason for dismissal. There are 6 potentially fair reasons for dismissal including some other substantial reason (“SOSR”). SOSR is a “catch-all” category which can be used when a dismissal does not easily fit within one of the other categories such as conduct or capability.
March 2011 : LICIA FAITHFUL v AXA PPP (Discrimination/Racial Bullying) £142k
Licia Faithful complained that she suffered post traumatic stress disorder and depression after being ridiculed by co-workers in the claims department of AXA PPP Healthcare, the medical insurance firm, where she earned £17,765 a year. A judge ordered the company to pay her aggravated damages – including almost £25,000 for hurt feelings – after hearing that she was subjected to an 18-month ordeal of racial bullying. An employment tribunal heard how staff in the office in Tunbridge Wells, Kent, recorded her voice and played it back to her, laughing and mimicking her accent. They referred to the mother-of-one as SpongeBob SquarePants, a character on the Nickelodeon cartoon channel who has a grating nasal voice. The hearing at Ashford Employment Tribunals in Kent also heard that was asked whether she was “on drugs” because she was from South America. Others stole miniature Brazilian flags from her desk and hid them and one manager allegedly told her not to wear a top with a Brazilian logo on it. The tribunal was also told that how colleagues called her “cranky” and “lazy”. One co-worker stood up on a coach during a staff outing and spoke about “bloody foreigners”, when she was the only non-British person on board, the tribunal heard. Mrs Faithful also had to watch as British colleagues received rewards from bosses, including cash and vouchers, for achievements to which she had contributed but received nothing, Judge Gill Sage found. The hearing was told that the abuse began after Mrs Faithful, who first joined the company in 2006, moved to the claims department in April 2007. By the end of 2008 she had been left in such an emotional state after months of mockery that she was unable to complete even basic household tasks, the tribunal heard. The judge ruled that Mrs Faithful had suffered the “a most serious case of discrimination” and had been treated “less favourably on the grounds of race”. She found that she endured a “hostile and degrading” environment in a company which had “lacked empathy” and put her through a “demeaning” grievance procedure after she complained about the abuse. “There was substantial evidence that these employees were engaged in bullying, which was contrary to the respondent’s own bullying and harassment policy,” she concluded. She awarded a total payout of just under £142,000 including damages for discrimination, injury to feelings, and personal injury. In a statement the company said that it was “disappointed” with the outcome and insisted it had already considered “areas for improvement”. “Treating our employees fairly is very important to us and we work hard to create a positive, supportive workplace culture where employees enjoy their working environment and feel that they can give their best in serving our customers,” the company added.
CART TONNA V TONNA CARE SERVICES (Sexual Harassment)
In March 2011 the managing director of a care agency in Whitley declared “justice has been done” after he was cleared of sexually harassing and unfairly dismissing a worker. Carl Tonna, who runs Tonna Care Services, was accused at an employment tribunal in Reading of bombarding Carla Mattingley with texts asking for dates and sending another relating to oral sex last summer. It was further alleged he placed a note on her car with a kiss and followed it up with another message asking if she had received it and made a proposition about wanting to have an affair with her sisters. Miss Mattingley, 20, further claimed at an employment tribunal the week before last that she had been deliberately refused extra hours of work and been sacked over the phone during a heated call with Mr Tonna. Tonna Care Services in Gillette Way was established in 2001 to provide residential care and support staff for the elderly, disabled and other vulnerable or special needs people. Miss Mattingley, of Langley Hill, Tilehurst, claimed she received up to 40 messages from Mr Tonna in June asking her out, accompanied with a smiley face and kisses. She had no evidence of these as she had changed her phone; however, she did have evidence of a text received in mid July that referred to oral sex and which Mr Tonna said was a joke about a male colleague, Colin Patten. Miss Mattingley said the message had left her “upset and distressed” even thought she had replied, ending the text with LOL [meaning ‘laugh out loud’] and suggesting she knew the comment was about Mr Patten. Mr Tonna denied placing the note on her car and having the conversation about her sisters and Miss Mattingley was again unable to provide evidence to support this. In August 2010 Miss Mattingley said she had been left waiting for Mr Patten to take over her shift and when he arrived she was described as “laughing and joking” about the offensive text. She claimed she and Mr Tonna had argued during a phone conversation that night about the late changeover, that he had deliberately reduced her hours and later sacked her. Mr Tonna maintained he had not dismissed her but he had been concerned when she threatened to leave a man with learning disabilities alone rather than wait for Mr Patten. He claimed he had asked her to come in the next morning to explain her “attitude” and would not give her any shifts until it was resolved. During this time Miss Mattingley sent the text on to Mr Tonna’s wife and they too argued on the phone. In this conversation the claimant said she was called “scrawny and skinny”, another accusation that was refuted. Mr Tonna said Miss Mattingley was still on the books. He said she had requested a P45 but this was normal practice because many agency staff worked for other companies. He added that he had provided a fair reference for her. The bench, chaired by Judge John Livesey, unanimously refused to uphold the claimant’s case.
JACKY SCOTT V COX LONG LTD (Sex Discrimination/Redundancy/Maternity)
In March 2011 an office manager was been awarded a “five-figure sum” for sex discrimination after she was made redundant when she got pregnant again while still on maternity leave. An office manager was awarded a “five-figure sum” for sex discrimination after she was made redundant when she got pregnant again while still on maternity leave. Jacky Scott, who worked at timber merchant Cox Long Ltd, wrote to her employer while she was still on maternity leave to tell management that she was pregnant and that she would be going on maternity leave again a few months after she got back. A few weeks after the letter, she was told that her position was potentially redundant and she was later dismissed. The employment tribunal found that a line manager told a colleague that he would rather make a member of staff redundant than give her maternity leave and noted that only one other employee was made redundant in that year.
RUSTAMOVA V CALDER HIGH SCHOOL, WEST YORKS. (Unfair Dismissal).
In March 2011 a teacher who was sacked after she wrote a racy novel about her pupils has lost her unfair dismissal claim. Leonora Rustamova, 41 – known as Miss Rusty to her pupils at Calder High School in West Yorkshire – lost her job after her book detailed teenage fantasies, violence and a criminal drug den. Mrs Rustamova took the school’s governing body to an Employment Tribunal in Leeds, claiming she was unfairly dismissed. On 11th March 2011 she was informed that the tribunal had dismissed her claim on a 2-1 majority, with the tribunal judge – who chaired the hearings – finding in her favour. The Employment Tribunal judgment said: “The majority (of the three-person panel) therefore conclude that the governors cannot be criticised for forming the view that dismissal was the appropriate sanction and, at any event, could not conclude that dismissal was outside the band of reasonable responses.” The book, which is peppered with expletives, names several teachers and features five Year 11 pupils – all real students and referred to as Miss Rusty’s favourites. One pupil is referred to as fantasising and flirting with Mrs Rustamova, who lives in Huddersfield, West Yorkshire. The story – Stop! Don’t Read This! – originally appeared on a self-publishing website before it was removed. Mrs Rustamova taught for more than 11 years before she lost her job in May 2009.
HALEY MOORE V METHODIST CHURCH (Unfair Dismissal/The Church).
In this landmark case, also in March 2011, a sacked female minister in Cornwall has won a ruling to bring a case against the Methodist Church for unfair dismissal. The decision by the Employment Appeal Tribunal reverses an earlier decision by the Court of Appeal and paves the way for all clergy to challenge their employers in the courts. The tribunal concluded that Haley Moore, who was dismissed as a minister in Redruth, was an employee under the Employment Rights Act and can take action against her former employer, the President of the Methodist Conference. The Unite union, which has been fighting for equal rights at work for religious workers for 16 years, said the decision was a “significant step forward”.
MCCALLUM V LES ENFANTS NURSERY (Sex Discrimination/Dismissal).
In March 2011 a nursery worker who claimed that she was sacked because she was pregnant lost her case at an employment tribunal. An Inverness nursery worker who claimed that she was sacked because she was pregnant has lost her case at an employment tribunal. Rosemary McCallum, 28, took an unfair dismissal action against Les Enfants Nurseries after she was sacked in August 2009. She was seeking £58,000 in lost earnings and compensation from the company, which employs 72 people. Mrs McCallum, of Millbank Road, Munlochy, claimed that she was sacked from her position as supervisor of the toddler room at the Westhill nursery because she was pregnant. But earlier this week, the nursery director, Denise Barras, gave evidence to the tribunal that complaints were made about Mrs McCallum’s work and attitude. Mrs Barras said that this amounted to gross misconduct. Mrs McCallum was off sick for a few days in July 2009, just days after she announced her pregnancy. The Care Commission visited the nursery during her absence and while carrying out a spot check before the official inspection, Mrs Barras discovered problems with the toddler room. Internal investigations revealed that morale in the department was poor and staff felt that Mrs McCallum was not doing her fair share of work. When she returned to work, Mrs McCallum was called to a disciplinary hearing and sacked. Employment judge James Hendry dismissed Mrs McCallum’s claim.
DR SATPAL SINGH JABBAL V WISHAW GENERAL HOSPITAL (Sexual Harassment).
NHS/GP Sex Pest ! In March 2011 a senior doctor sacked after being accused of being a sex pest has lost his claim for unfit dismissal. A senior West Fife doctor sacked after being accused of being a sex pest has lost his claim for unfair dismissal. Dr Satpal Singh Jabbal, an anesthetist at Wishaw General hospital who lives in Crossford, lost his job after nurse Maxine Fernon made a complaint about him acting in an unprofessional manner in theatre. An employment tribunal was told in January that he had pinched her on the stomach and stopped her leaving the theatre. A second complaint of sexual assault was lodged by another nurse – who cannot be named for legal reasons. During an internal enquiry Dr Jabbal admitted pinching Mrs Fernon but denied indecently assaulting the other nurse. He was sacked but took the case to an employment tribunal in Glasgow, claiming the health board had been biased against him and had not followed proper procedures. But, in a written judgment issued this week, the tribunal panel ruled that a “reasonable employer” could conclude that Dr Jabbal’s behaviour justified dismissal. The tribunal had been told that an NHS Lanarkshire disciplinary panel decided to sack the doctor after hearing evidence from both nurses. Mrs Fernon had said Dr Jabbal had kicked her to get her attention and that she felt she had been bullied and harassed by him. The second complainer was “adamant that she had been sexually assaulted” by Dr Jabbal, claiming that he had touched her breast. She reported him to the police but the doctor did not face any criminal proceedings. The tribunal heard that during the investigation although no evidence was found to corroborate Mrs Fernon’s complaint, there was evidence that there was unprofessional behaviour in theatre. The hearing was told Dr Jabbal admitted a culture in the theatre that Ms Fraser said “the organisation would not see as professional behaviour”, including hugging, touching, kicking and discussing body parts in a humorous manner. Two previous incidents involving female staff, after which Dr Jabbal was given warnings, were also used in the management case. These included throwing coffee at a support worker and theatre instruments on the floor in front of a nurse.
DENISE LUND V YSGOL Y FRON (Unfair Redundancy).
A Flintshire teacher who claimed she was unfairly chosen for redundancy because the school head had a grudge against her has won her case against Holywell School. An employment tribunal has upheld the claim of Denise Lund, who had worked at Ysgol y Fron in Holywell for 20 years. She and her friend Linden Moore were the two members of staff who lost their jobs in May 2009 when the school needed to make savings of £75,000. But Mrs Lund says that headteacher Peter Davies skewed the criteria to ensure that she scored poorly when the assessments were being made. That, she alleged, was because they had had disagreements over a few matters, including an unsubstantiated allegation of assault on a child and her request to finish work early because her horse was ill. Mrs Lund said her specialist subjects, music and science, had both received a Grade 2 from inspectors, but that was not taken into account in the scoring system used by the school governors in selecting staff for redundancy. Mrs Moore, from Flint Mountain, died in December, but her similar claim for unfair dismissal was pursued by her executors, their argument being that she was chosen and penalised for being a friend of Mrs Lund’s. At the hearing in Towyn the tribunal was told there were several incidents which showed that Mr Davies was ill-disposed towards Mrs Lund, who lives in Rhosesmor, and was able to affect the decision of the governors. Barrister Toby Kempster, for the claimants, said the processes were also flawed and it was unfair and unreasonable of the governors to have given the staff affected only six days to present alternatives to redundancies. But Richard Bradley, for Flintshire County Council and the Ysgol y Fron governors, refuted the claims. He said the allegations against Mr Davies were ‘misconceived’ and that the process had been conducted fairly. The tribunal ruled that Mrs Lund’s and Mrs Moore’s claims for unfair dismissal were both well founded, and another hearing will now be held to consider a conclusion.
2010: BULLIMORE V POTHECARY WITHAM WELD SOLICITORS (2010)
Employee References. Take care when issuing employee references. This case relates to a Solicitor who brought a claim of sex discrimination and unfair dismissal. Four years later she applied for, and was offered, a job with another legal firm. Her job offer was subsequently withdrawn because of an unfavourable reference provided by the responded. The reference said she had a poor relationship with her former colleagues. The claimant claimed victimisation. A compromise could not be reached so the case proceeded. The Employment Appeal Tribunal agreed that the recipient of the reference had been influenced by the fact that the claimant had brought proceedings against her former employer and has passed the case back to the Tribunal to reconsider awarding Ms Bullimore damages for loss of earnings. This case is not concluded.
2009: HEALTH & SAFETY (is this a joke) !
Elephants in your office (Elph and Safety). In this ‘mammoth case’, a zookeeper claiming constructive dismissal has alleged that he warned his employer that an elephant could escape only weeks before it actually did.
Dr O’Donaghue brought a tribunal claim after resigning from his job at Woburn Safari Park in December 2009. He alleges that he was unable to do his job due to his employer’s breaches of health and safety rules. He claims that the elephant escape was not reported to the relevant authorities and that his safety and that of others was put at risk during his employment. The park’s representative at the hearing said that “keeping a six-ton elephant in an enclosure is not an easy undertaking”, which isn’t particularly surprising. The park argues that it has adequate safety measures.
2003: HORKULAK V CANTOR FITZGERALD INTERNATIONAL
Constructive Dismissal. Damages were awarded in this case of £1M in salary and bonuses. The employee was under-performing but, sadly, instead of addressing his performance his manager decided to use bullying and belittling tactics. The High Court took the view that the manager’s behavior destroyed the relationship of trust and confidence and the employee was regarded as having been Constructively Dismissed. The Judge did give consideration to the use of foul language – that was commonplace in this particular workplace. Even though it was considered `the norm’ the Judge found it most unacceptable. So, any employers using `old style’ aggressive management in the belief that it is excusable – take heed! This case was a double whammy for CFI.
2003: BEADLES GROUP LTD V ANGELICA GRAHAM £178,000.
Sexual Harassment. The Guardian called it Sexual Bullying. The Daily Mail called it Sex Discrimination. Lawyers refer to the case as Sexual Harassment and say the payout is believed to be one of the highest awards ever, reflecting its seriousness. Whatever you call it, it was gross negligence and irresponsibility on the part of the Employer, who has a Duty of Care for all employees – and that includes temporary workers and contractors too! Trainee Sales Executive, Ms Angelica Graham, was awarded £178,000 due to the conduct of her line manager, car salesman Ralph Marriott, during her first week at work. Marriott was ordered to pay £7K of the award personally. Quite right too. The Employer, Beadles Group Ltd., had no written policy on sex discrimination, harassment or equal opportunities and neither did it provide training, guidance or advice to employees on the seriousness of bullying and harassment. The Employer was therefore completely liable, as they had failed to take appropriate steps to protect their employees and prevent harassment from occurring in the workplace.
13 December 2002: Recruitment Consultant, Swindon. (an HR&DM case)
Breach of Contract. In this case, the Employment Tribunal in Bristol unanimously rejected an action for breach of contract against a large recruitment agency in Swindon. The claim arose following the suspension of a manager, who was suspected of bullying members of staff. The manager’s conduct was investigated discreetly, appropriately and thoroughly and in accordance with ACAS guidelines but she refused to cooperate with the investigation and resigned (in anger) and then lodged a tribunal claim. The Tribunal found that the manager had wasted the Court’s time and she was ordered to make a contribution towards the employer’s legal costs. The Chairman of the Tribunal said that employers cannot afford to ignore bullying and harassment and the agency were right to investigate matters. The defence was handled by a Bristol firm of Solicitors and was supported by Swindon-based HR & Diversity Management Limited, an HR Consultancy who advised the agency from the initial bullying investigation through to the employment tribunal hearing.
22 March 2001: in Johnson v. Unisys.
Unfair Dismissal & Injury to Feelings. The Law Lords decreed that they see “no reason why, in an appropriate case, it [the amount of compensation] should not include compensation for distress, humiliation, damage to their reputation in the community or to family life”. This is the first time a judgment has indicated that unfair dismissal claimants might be compensated at tribunal for injury to feelings. At present there is a £51,700 ceiling on awards for unfair dismissal which cannot be breached, and the average award of a couple of thousand pounds is only for loss of earnings until the applicant finds, or the tribunal believes s/he should have found, a new job. This is in sharp contrast to harassment and discrimination claims on which compensation is theoretically unlimited. Richard Lister, of Lewis Silkin, comments that if “someone has been frog-marched out of the office in front of their colleagues they could argue that this damaged their reputation and seek appropriate compensation. If someone had been through a dismissal that was so traumatic that it brought on a stress-related illness and they had medical evidence, they could get a very significant award.”
4 May 2001: the case of Long v Mercury Mobile Communications Services.
Stress/Duty of Care. This landmark case establishes a precedent of one stress breakdown rather than the two stress breakdowns required by the judgment in Walker v. Northumberland County Council. Jeffery Long was a successful telephone procurement manager with no previous history of psychiatric injury. He was asked to provide a confidential report, which implicated his line manager, Simon Stone, in mismanagement. The report was disclosed to his line manager who then immediately carried out a “vendetta” against Mr Long with the probable intent of driving him out of the company. This vendetta involved wrongfully blaming him for the mismanagement, taking important procurement contracts from him, making unfounded allegations against him of abusing customers and breach of confidence resulting in suspension, and placing orders without authority. The Claimant complained to the Personnel Manager about this conduct but not about the effect it was having upon him. The Personnel Manager in turn complained to the Managing Director who did nothing because he favoured Stone. Eventually, the Claimant was separated from Stone by being demoted. Mr Long suffered an adjustment reaction. The Defendants had to admit liability on the third day of the trial and fought damages. The Judge expressed his agreement with the Defendant’s admission and went on to award £327,000.00 damages with indemnity costs.
11 January 2000: former senior housing benefits officer Roderick McLeod.
Stress. Mr McLeod accepted £200,000 in an out-of-court settlement for psychiatric injury culminating in a stress breakdown caused, he alleged, by bullying, harassment and abuse of his line manager Susan Claydon at Test Valley Borough Council in Andover, Hampshire, England.
21 February 2000: former fire-fighter John Richards from Neath, Glamorgan South Wales, accepted record six-figure damages believed to be in excess of £150K for psychiatric injury caused by bullying and victimisation by fellow fire-fighters at West Glamorgan Fire Service. The focus of the victimisation appeared to be one senior officer who was described by the occupational health doctor as “a fascist bastard” and by a counselor as “a pig” (Daily Mail, 22 Feb 2000, p23).
March 2000: in Harvest Press Ltd v. McCaffrey, Mr McCaffrey had walked out of the workplace after harassment by a fellow worker. He reported the harassment and was told to come back to the workplace; McCaffrey said he would only return if the employer would take action against the harassment and thus guarantee his safety. The employer took the harasser’s version of events and sacked McCaffrey for refusing to return to work. The EAT judged that McCaffrey had been unfairly dismissed. The court decided that section 100(1)(d) of the Employment Rights Act (1996) applied and that the “circumstances of danger” applied to any danger, including that of harassment by a fellow worker, not just physical dangers relating to work premises.
Britain’s first personal injury case for the psychiatric injury caused by bullying, Walford v. Ford Motor Company, was settled out of court in February 1998. Settlement was conditional on a gagging clause.
Without doubt, employees who bully or harass colleagues at work, in your organisation, are a liability.
Sadly, also, managers who are unable to manage these issues, in your organisation, are also a liability !
Have you ‘risk assessed’ your organisation recently?