Dismissing an employee for persistent and unfounded complaints is still victimisation

Victimisation after Multiple Grievances/Claims

Although we don’t provide employment law advice any longer, this is a salutary warning for all employers.

This is reproduced from the Employment Bulletin of Daniel Barnett -Employment law barrister. For more information on Daniel’s services go to http://www.danielbarnett.co.uk

The facts of this case are interesting and many employers will have some sympathy for the employers in this situation. The ratio – that victimisation claims don’t require a comparator – doesn’t really give the true picture. Here are the facts…

Mr Woodhouse is black. Over a period of four years, he lodged ten internal grievances alleging race discrimination. Separately, he brought seven employment tribunal claims against his employer. They were almost all found to be “empty allegations without any proper evidential basis or grounds for his suspicion”.

The employer eventually dismissed him, because of a breakdown in trust and confidence. The employment tribunal held this was not victimisation, because the employer would similarly have dismissed any employee (irrespective of race) who had brought a similar number of meritless grievances and claims.

That was wrong, held the EAT in Woodhouse v West North West Homes Leeds. The grievances and tribunal claims were ‘protected acts’. He was dismissed because he made those protected acts. There was no suggestion of bad faith (which would have prevented the grievances amounting to protected acts). Since he was dismissed for making protected acts, his victimisation claim was made out.

It’s undoubtedly the right decision from a legal perspective, no matter how unfair it may appear to the employer. In the absence of bad faith, this case provides that an employer cannot dismiss an employee who makes serial but misguided complaints of (any sort of) discrimination.

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