Employment Watch Winter 2011 - Dismissal for raising “false” discrimination claims is not necessarily victimisation

2 February 2011

Under the old, pre-Equality Act 2010, discrimination legislation, and also under the Equality Act itself, it is unlawful victimisation for an employer to dismiss, or subject to other detriment, an employee who has performed a "protected act". "Protected acts" can include an employee alleging unlawful discrimination.

Under the old, pre-Equality Act 2010, discrimination legislation, and also under the Equality Act itself, it is unlawful victimisation for an employer to dismiss, or subject to other detriment, an employee who has performed a "protected act". "Protected acts" can include an employee alleging unlawful discrimination.

This has posed problems for employers faced with the situation where such grievances are false. Unless the employer can prove such grievances were made in "bad faith", which in practice is very difficult to do, it can take no action against an employee who raises allegations that turn out not to be true.

However, the case of Martin v Devonshires Solicitors (UKEAT/0086/10) shows that in certain circumstances action may be taken by employers.

Ms Martin was a secretary at Devonshires Solicitors. In 2008 she lodged a grievance detailing her belief that her previous firm had told some of the partners at Devonshires that she had brought a discrimination claim against the old employer. She maintained that, as a result, she suffered harassment and that two of the Devonshires partners had made discriminatory comments to her.

As a result of this complaint, quite properly, Devonshires investigated. They found that no-one at the firm was aware that Ms. Martin had sued her old employer for discrimination. It also found that no discriminatory comments had been made, that the grievance had been brought in bad faith, and therefore recommended that the grievance not be upheld.

The following month Ms Martin went on sick leave with stress. While on sick leave she lodged seven further grievances alleging discrimination and brought a claim for discrimination against Devonshires in the employment tribunal. The firm managed to obtain a report from a consultant psychiatrist that Ms Martin suffered from a depressive illness with occasional paranoid delusions. He also advised that Ms Martin’s belief that two of the partners had made discriminatory comments to her was probably an auditory hallucination.

Devonshires fired Ms Martin. The stated reasons for her dismissal included her continuing insistence that the allegations in her first grievance were true, despite very strong evidence that what she thought she heard was as a result of her illness; that returning to work with the people who were mentioned in and were witnesses to her grievances would be stressful for her and bad for Ms. Martin’s health; that other staff might have to face similar false accusations which would waste further management time; and finally that the relationship between her and the firm had irretrievably broken down.

Ms Martin brought a further tribunal claim for sex and disability discrimination, victimisation and unfair dismissal. Her claims failed before the Tribunal. The Employment Appeal Tribunal upheld the Tribunal’s decision - ruling that the reasons for the dismissal were separate from the fact that Ms Martin’s allegations related to discrimination.

The EAT said that "there will ... be cases where an employer has dismissed an employee ... in response to the doing of a protected act (say, a complaint of discrimination) but where he can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable". This might be, for example, where an employee makes a good faith complaint of discrimination but makes it in terms of violent racial abuse of the manager alleged to be responsible. There it would not be unlawful victimisation for the employer to say "I am taking action against you not because you have complained of discrimination but because of the way in which you did it".

Although the case will be welcomed by employers as showing that there are cases where it will be lawful to dismiss an employee who has brought multiple and false grievances, here dismissal should always be a last resort. In this case, the employer had clear and independent expert evidence as to the psychiatric issues faced by the employee, and the facts in this case were unique and somewhat extreme. Employers should always seek legal advice before dismissing an employee who has raised a grievance.

For more information please contact Richard Fox, head of Employment, at rfox@kingsleynapley.co.uk or +44 (0)20 7814 1285.

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