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Employee unfairly dismissed when employer learned that she had sued her ex-employer

Posted by TonyBrownEmploymentSolicitor on July 18, 2013

The Equality Act makes it unlawful to victimise someone by subjecting them to a detriment because they have brought discrimination proceedings, complained about discrimination or were involved in a fellow employee's discrimination grievance or claim, for example as a witness. It does not matter who the proceedings etc. have been brought against.

In the next case, an employer dismissed a newly recruited employee after finding out that she was suing her former employer for sex discrimination. An ET said that this was victimisation.

The facts were that the Claimant had worked for Deutsche Bank (“DB”). She brought sex discrimination and equal pay claims against DB before resigning. A few months later, she applied for work at Commerzbank. At her interview, Commerzbank asked the Claimant why she left DB. She gave as her reason that she wanted to work in a smaller team and did not refer to the fact that she was suing DB for discrimination (because, she later explained, she feared that Commerzbank would not hire her if she mentioned the claim.)

A few weeks into her employment at Commerzbank, a newspaper published an article headlined "Ex-Deutsche Bank worker claims sex bias over lower bonus" named the Claimant and referred to the fact that she was now working for Commerzbank. The next day, she was dismissed.

Commerzbank denied victimising the Claimant by dismissing her because of her claim against her former employer, arguing that she was dismissed because she had failed to disclose relevant information to them (i.e. her claim against DB) and that it was exposed to reputational risk when the newspaper article was published.

Upholding the Claimant’s claim, the ET said that, although the Claimant may not have given entirely full answers, this was not the same as having misled Commerzbank. According to the ET, "when asked direct questions, she gave direct answers….failure to answer questions that were not asked does not amount to a lack of honesty." In any event, her litigation with DB was not relevant to her employment with Commerzbank. The ET thought that the Claimant’s claim against DB was a "private matter and would not affect her employment" with Commerzbank.

Comment

The definition of victimisation is wide and covers not only people who have made their own allegations of discrimination, but also those who have supported the claims or grievances of others, for example, as a witness.

On the facts, the tribunal rejected Commerzbank’s argument that the dismissal was because the Claimant had misled it about the reason she had left Deutsche Bank. However, the Claimant might well have argued that it should not matter to a claim for victimisation if she had concealed bringing proceedings against Deutsche Bank.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk

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