July 31, 2013

Disciplining Employees Over Grievances

Can you discipline or dismiss an employee for raising multiple unfounded grievances?

The case of Woodhouse v West North West Homes Leeds Ltd [2013] has highlighted the difficulties for employers faced with how to deal with an employee who raises multiple baseless grievances and tribunal claims.

Over a period of four years, Mr Woodhouse, raised multiple grievances and brought a number of tribunal claims against his employer alleging race discrimination. Eventually, his employer decided that his behaviour in continuing to raise grievances, his refusal to accept outcomes and the likelihood that he would bring further baseless grievances and claims in the future showed that he had lost trust and confidence in the organisation and dismissed him.

As a result of his dismissal, Mr Woodhouse brought a claim in the employment tribunal arguing, among other things, that his treatment by his employer amounted to victimisation under the Equality Act 2010, in that his employer had subjected him to a detriment because he had done a protected act. A “protected act” includes raising grievances about discrimination and/or bringing a claim alleging the same.

The Employment Tribunal found that, apart from the first two grievances, Mr Woodhouse’s grievances and claims, although brought in good faith, were baseless. It found that the employer’s treatment of him was not because he had committed “protected acts”, but because of the repetition of unfounded and unjustified grievances and his obsession that his managers and the organisation were racist. For that reason, and for other reasons that were subsequently found to be incorrect in law, the tribunal found that there had been no victimisation.

In reaching its decision, the Employment Tribunal found his case to be identical to Martin v Devonshire Solicitors [2010]. In this case, the Employment Appeal Tribunal (EAT) held that an employer would not be guilty of victimisation where it could show that the reason for its treatment of the employee was not because of the protected acts themselves but for reasons that were “genuinely separable” from the protected acts. In Martin, the “genuinely separable” reasons were the falseness of the allegations, the fact she was unable to accept the allegations were false, the fact that both those thing were the result of her mental illness and the risk of further disruptive and unmanageable conduct as a result of that illness.

Mr Woodhouse appealed to the EAT and in addition to correcting an error of law in the tribunal’s findings, they found that, although there will be cases where the reasons for putting an employee to a detriment are “genuinely separable” from the protected acts, Employment Tribunals would “do well to start from the position that very few cases will be like Martin”. The EAT noted that Mr Woodhouse’s allegations were at least not entirely fictitious, as they had been in Martin. Further, his behaviour, and likely future behaviour, was not likely to be made more difficult to manage as a result of a mental illness, as it was in Martin. As such, the EAT found that Mr Woodhouse’s case was not identical to Martin and held that his employer was guilty of victimisation.

This decision will naturally come as a disappointment to employers, as they are left wondering what they can do with employees who raise multiple baseless grievances. That is a difficult question to answer.

The fact that there was not much of a difference in the employers’ reasons for dismissing Martin and Woodhouse and yet the cases were decided differently suggests that the EAT was keen to show that Martin was very much the exception and not the rule. In that respect, employers must tread very carefully when trying to take that line.

That said, one of the EAT’s major problems in Woodhouse was the Employment Tribunal’s failure to properly identify the reasons that were “genuinely separable”. Employers would therefore be advised to think and to state clearly in any disciplinary correspondence what precisely those reasons are and which need to be properly formulated. Reasons such as the employee behaving in an aggressive or threatening manner, making allegations in bad faith or which are known not to be true are likely to be sufficient. Entirely fictitious grievances are more likely to be sufficient to ones with some basis in fact.

When in doubt about whether or not a dismissal could be lawful in these circumstances, employers should seek advice.

 

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