Employee unfairly dismissed, despite losing 9 Tribunal claims against his employer!

Many employers will have had to grapple with the difficulties of dealing with an employee who never seems to be happy in his or her job. However, we doubt many will have had a case as extreme as the one considered by the Employment Appeal Tribunal (EAT) in Woodhouse v West North West Homes Leeds Limited [2012].

In this case, Mr Woodhouse was a project manager working for a company which managed social housing on behalf of the local authority. Between 2005 and 2010 he raised 10 grievances against his employer. The first grievance was lodged after the company carried out an investigation into whether colleagues of Mr Woodhouse had made either racist comments about him or otherwise had racist attitudes.  The investigation found that there had not been any race discrimination against Mr Woodhouse. Mr Woodhouse was not happy with that decision, and brought his first grievance against the company. This was rejected.

After a period of absence from work due to stress, Mr Woodhouse raised further grievances against his employer. His grievances concerned:

• Alleged racist comments made by the same colleague as previously.
• An incident between him and a colleague.
• Complaints about the amount of sick pay he was paid.
• A suggestion by his employer that he should be referred for cognitive behavioural therapy.
• The reallocation of his duties when he returned to work after a period of sickness absence.
• Victimisation on account of his having made previous grievances.
• The way in which his grievances had been handled.

All these grievances were also rejected, as were his appeals against the outcomes.

At the same time as raising the grievances, Mr Woodhouse filed 8 claims in the Employment Tribunal alleging race discrimination, racial harassment and victimisation. The company decided to dismiss Mr Woodhouse on the basis that there had been a complete breakdown in the relationship. Mr Woodhouse, perhaps not surprisingly, filed a further claim with the Employment Tribunal for unfair dismissal.

The Employment Tribunal rejected Mr Woodhouse’s claims for race discrimination, racial harassment and victimisation. They did find that he was unfairly dismissed, but only on the basis that the employer had failed to warn him of the possible consequences of his actions. However, they found that this made little difference, and reduced Mr Woodhouse’s award by 90%. Mr Woodhouse appealed to the Employment Appeal Tribunal (EAT).

The EAT allowed the appeal. They started by looking at the reason for dismissal – was it because Mr Woodhouse had raised issues of race discrimination and harassment? If the answer to that was yes, then provided he had not raised the discrimination or harassment issues in bad faith (which it was accepted he had not), then the claim for victimisation was bound to succeed. This is because the Equality Act 2010 provides that if a person is subjected to a detriment because they have raised issues of discrimination, then that amounts to unlawful victimisation. In those circumstances, the reduction in compensation for unfair dismissal could not stand.

This is a very extreme case – but over the years we have advised several employers on how to handle sometimes very difficult employment issues. The key to getting the right result is not to rise to the bait, but rather to address matters in a rational and systematic way. That way you put yourself in a strong position if the employee does ultimately bring claims against you.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.