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27-08-2013

Q: What do you do if you have an employee who raises multiple unfounded grievances and/or brings employment tribunal claims against their employer?

A: Proceed with extreme caution.

In Woodhouse v North West Homes Leeds Limited, Mr Woodhouse, who was of black ethnicity, raised multiple grievances and brought a number of tribunal claims against his employer alleging race discrimination. Each grievance was rejected as baseless and his employment tribunal claims failed. Eventually, his employer decided that his disruptive behaviour had led to a breakdown in trust and confidence and dismissed him.

As a result of his dismissal, Mr Woodhouse brought a claim in the employment tribunal (his eighth claim apparently) arguing that his treatment by his employer amounted to victimisation under the Equality Act 2010, i.e. that the employer had subjected him to a detriment (dismissal) because he had done a protected act. A "protected act" includes bringing a claim alleging discrimination.

The employment tribunal found that, apart from the first two grievances, Woodhouse’s grievances and claims, although brought in good faith, were without foundation. It found that the employer’s treatment of Mr Woodhouse was not because he had committed "protected acts", but because of the repetition of unfounded grievances and that the employer would have dismissed any employee (regardless of race) who had brought a similar number of baseless allegations and claims. Therefore his claim was rejected.

Mr Woodhouse appealed to the employment appeal tribunal (EAT) which held that he had been subjected to a detriment (dismissal) as a result of carrying out protected acts. The EAT stated that a comparator was not required in the context of a victimisation claim and concluded that there was no suggestion that Mr Woodhouse had acted in bad faith in raising the grievances or bringing the claims. His victimisation claim was therefore successful.

The Employment Tribunal had relied on the case of Martin v Devonshire Solicitors when rejecting Mr Woodhouse’s claim for victimisation. In that case, an employee had been dismissed for raising a number of untrue allegations, and had refused to accept that they were baseless. In that case the Claimant had a mental illness. Ms Martin’s claims for victimisation had failed because the EAT held that the reason for dismissal was not the complaint itself but some feature of it that could be treated as separable. At first blush, the cases of Martin and Woodhouse appeared almost identical, but the EAT said that caution needed to be used and that Martin type cases would be exceptional.

The cases highlight the problem an employer faces when dealing with disgruntled employees. It is not unusual for some employees to repeatedly raise multiple grievances and /or bring tribunal claims for matters such as discrimination whilst still employed by their employer. Dismissing an employee for this reason, fairly and in a non-discriminatory manner will be difficult unless there is a genuinely separable reason for dismissal. In Martin, the EAT gave the example of an employee who puts their grievances across with threats of violence. In such circumstances, it would not be against any anti- victimisation rules, for the employer to take disciplinary action, not for the grievance, but for the way it was put across. Therefore an employer faced with this sort of situation would need to seriously consider taking legal advice before taking action against the employee. The reasons for such action need to be carefully distinguished from the fact that they might have raised a grievance or brought a claim.

Sarah Rushton

srushton@moonbeever.com

Tel: 0207 539 4147

This is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information.

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