25 June 2013

The law is clear: protected acts and victimisation

8:16am

In Woodhouse v West North Homes Leeds Limited UKEAT/0007/12 Mr Woodhouse, a Project Manager at West North Homes Leeds Limited raised ten grievances against his employer between 2005 and 2010 citing racist comments made concerning him.

Investigations surrounding the first grievance by Mr Woodhouse’s employer found no evidence of race discrimination against him. Following a period of work-related stress Mr Woodhouse went on to raise further grievances for complaints including racist comments made by colleagues, complaints about sick pay, the way his grievances had been dealt with, victimisation for raising the grievances, the nature of his duties upon his return to work and a suggestion by his employer that he be referred for cognitive behavioural therapy. The employer rejected all of his grievances and Mr Woodhouse bought employment tribunal claims. His claims included race discrimination, harassment and victimisation.

Following Mr Woodhouse’s dismissal for a breach of trust and confidence he also brought a claim for unfair dismissal. His unfair dismissal claim was upheld but the tribunal dismissed all other claims.

The employment tribunal found that the employer would have similarly dismissed another employee who had brought the same number of grievances and claims regardless of their race. This was not victimisation.

The tribunal held that his dismissal for some other substantial reason was unfair as the employer had not given Mr Woodhouse a warning or an opportunity to put things right. Despite this the tribunal held that it would have been unlikely that Mr Woodhouse would have remained in employment even after receiving a warning due to the possibility that Mr Woodhouse was not capable of performing his job following a report from Occupational Health. The tribunal reduced Mr Woodhouse’s compensation by 90% as a result. Mr Woodhouse appealed.

The Employment Appeal Tribunal held that the tribunal was wrong to conclude that there had been no victimisation. The reason for Mr Woodhouse’s dismissal was the fact that he had brought grievances and claims which amounted to a protected act. Mr Woodhouse had not brought these in bad faith. His victimisation claim was therefore successful.

The decision in this case is going to sit uncomfortably with employers but there is no doubt that this decision follows the law. The message for employers is that where an employee makes complaints of discrimination they should not dismiss that employee for raising those complaints.