Seventh time lucky

23 Aug 2013

Over a five year period, Mr Woodhouse brought ten separate grievances against his employer, West North West Homes (Leeds) Ltd.  Each time his grievance related to allegations of race discrimination. Mr Woodhouse also submitted seven separate Employment Tribunal claims alleging race discrimination, whilst still employed by West North West Homes.

As any good employer would, West North West Homes investigated each of Mr Woodhouse’s grievances.  None of his grievances were upheld.

Following these repeated allegations, West North West dismissed Mr Woodhouse in October 2010, for some other substantial reason, explaining that it could not continue to employ Mr Woodhouse when he clearly had lost all trust and confidence in his employer.

Perhaps unsurprisingly, Mr Woodhouse brought another Tribunal claim alleging, amongst other things, that his dismissal was an act of victimisation.

An employer will be treated as having victimised an employee, under the Equality Act 2010, where it subjects him to a detriment because he has done a protected act.  In this case, bringing a discrimination claim in the Tribunal or raising a grievance which contains allegations of discrimination by the employer both constitute “protected acts”. Somewhat significantly in this case, the employer, at no time, suggested that Mr Woodhouse’s claims or grievances were brought in bad faith.

The Tribunal initially rejected Mr Woodhouse’s victimisation claim because it was satisfied that any other employee who had brought so many unfounded grievances would have been treated in the same way.

However, despite stating its great sympathy for the employer, the Tribunal, seemingly becoming a little less sympathetic, found the dismissal unfair on the basis that no one had warned Mr Woodhouse that if he continued to bring baseless race complaints he was putting his job at risk.  Do not try this at home!  Certainly an unusual reason to give, as this type of behaviour in itself might normally be the basis of a victimisation claim.

The Employment Appeal Tribunal (EAT) however, upheld Mr Woodhouse’s victimisation complaint.  It said the Tribunal had erred in looking at how a comparator would have been treated.  It said the key question was whether Mr Woodhouse’s dismissal was because he had done a protected act.  Fundamentally, the real reason for Mr Woodhouse’s dismissal was because he had brought so many grievances complaining of race discrimination and was likely to continue to do so in the future.  It did not matter that there was no merit in any of the grievances; they are what ultimately caused a breakdown in trust and confidence between employer and employee.  There had, at no time, been any suggestion that Mr Woodhouse acted in bad faith and it was accepted that he genuinely believed that his Employer had discriminated against him.

Our view:

This case is a timely reminder for employers that an employee who has raised a grievance or brought a claim alleging discrimination, however groundless, has an extra layer of protection built in.