Council loses constructive dismissal case over poor investigation

Law and Labour — Sun, 11 Jan 2015 11:39:06 +0000

A recent EAT case demonstrates how an employee may win a constructive dismissal claim if the employer fails to carry out a reasonable investigation because it assumes the employee has committed the misconduct alleged. It is also a useful reminder that, in cases of direct discrimination, it is important to identify the correct comparator before deciding whether an employee has been subjected to less favourable treatment.

The employee, Mr Austin, was Head of Finance at West Sussex County Council. In January 2012, a female colleague accused him of harassment. West Sussex began an investigation into the allegations, but mid-way through the investigation Mr Austin went on sick leave due to stress. In May 2012 he resigned from his job, having not returned to work from sick leave.

Mr Austin subsequently brought claims of constructive unfair dismissal and sex discrimination in the Employment Tribunal.

He argued that his dismissal was unfair because he had not been given a fair disciplinary hearing, West Sussex having effectively decided he was guilty when it learnt of his involvement in an earlier case of harassment at a previous employer.

The Tribunal found that Mr Austin had not been treated fairly during the disciplinary process.

He had been suspended for a month but not given the reasons for his suspension. The investigation carried out by West Sussex had been shallow and one-sided. They had failed to provide Mr Austin with any documentation nor had they interviewed witnesses suggested by him. When Mr Austin’s mental health had deteriorated, causing him to go on sick leave, West Sussex had not taken his stress and anxiety into account. They had scheduled disciplinary hearings despite knowing that he was too ill to attend. During the investigation, Mr Austin had raised a complaint about being bullied by his line manager. However, West Sussex had not carried out any investigation into this complaint and, by this omission, had failed to follow its own policies on investigating complaints.

In relation to the claim of direct sex discrimination, Mr Austin argued that West Sussex’s failure to investigate a complaint he had lodged, while at the same time investigating the complaint of his female subordinate, was discriminatory due to his sex. The Tribunal agreed that West Sussex had discriminated against him.

West Sussex accordingly appealed the Tribunal’s decision to the Employment Appeal Tribunal (EAT).

The EAT found that the Employment Tribunal had correctly decided the constructive unfair dismissal claim in Mr Austin’s favour. The procedural defects in West Sussex’s disciplinary procedure were such as to break the term of mutual trust and confidence that should exist between employer and employee.

However, the EAT found that that the sex discrimination claim had been wrongly decided because the Employment Tribunal had misunderstood the nature of the comparator in Mr Austin’s claim for direct sex discrimination. The Tribunal had relied upon a hypothetical comparator which it took to be a senior manager whose male subordinate had complained about his conduct when she managed him during leave by her regular line manager.

This was the wrong comparator, decided the EAT. Instead, the [...]

Employment Tribunal fees stay but Unison will appeal

Law and Labour — Sat, 20 Dec 2014 10:02:47 +0000

Unison’s challenge to the Employment Tribunal fees scheme has suffered another setback with the High Court’s decision to dismiss the union’s application for judicial review. The Court decided that although fees may amount to a deterrent, they are not an excessive restriction against bringing a claim in the Employment Tribunal.

Unison had challenged the fee scheme by arguing that fees made it exceptionally difficult for an employee to bring an Employment Tribunal claim. They had also argued that the fee scheme operated in a discriminatory manner, particularly in relation to women. The High Court dismissed both of these arguments.

The Court first considered whether employees were effectively barred from bringing claims in the Employment Tribunal, and found this was not the case. The Court said although some employees might find it difficult to pay Employment Tribunal fees, this did not satisfy the test, which required that it must be virtually impossible or excessively difficult for an employee to bring a claim.

“The setting in place of a regime that merely discourages those with no arguable grievance cannot constitute an interference with a right of access to the court.” High Court

The Court was dismissive of Unison’s reliance on statistics to support its arguments. It noted that although the statistics showed a striking reduction in the number of Employment Tribunal cases, this was not sufficient to draw the conclusion that workers were effectively barred from bringing claims due to the cost involved.

“The statistics relied upon in this case raise a legitimate question about the operation of the new regime, but they do not provide the answer to that question.” High Court

Better evidence would be actual cases in which the Court could review an individual’s income and expenditure and decide whether the person had been effectively barred from bringing a claim.

Even if the union’s arguments were to be made out, the High Court felt that removal of the fee scheme altogether was not an appropriate solution. The Court stated that it would be more sensible to allow the Lord Chancellor to exercise his discretion to waive fees where exceptional circumstances necessitated it.

The High Court also dismissed Unison’s arguments on the fee scheme operating as a form of indirect discrimination, particularly in relation to women. The statistics proffered by Unison did not support their view that such discrimination had occurred. Even if the scheme was discriminatory, the Court felt its introduction could be justified as the cost of running a Tribunal service required some contribution from those who bring claims.

Soon after the judgment was published, Unison announced plans to appeal. The matter therefore continues to run.

CASE R on the application of Unison (No. 2) v (1) The Lord Chancellor (2) Equality and Human Rights Commission, High Court, 17 December 2014

Law and Labour » Sex discrimination

Council loses constructive dismissal case over poor investigation

Employment Tribunal fees stay but Unison will appeal