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How should employers respond to unfounded or vexatious allegations of discrimination?

Posted by TonyBrownEmploymentSolicitor on March 1, 2016

Investigating those allegations will be time consuming and can divert the employer’s resources. Inevitably, there will be some resentment at having to deal with allegations that the employer believes are irrational or which put an intolerable strain on the relationship with the employee.

However, employers must be careful about dismissing employees who make unsubstantiated complaints of discrimination. This is because the Equality Act 2010 protects employees who allege that their employer (or another person) has contravened the Equality Act, or who bring a discrimination claim, complain about harassment, or get involved in some way with another employee's discrimination complaint (such as giving evidence). Making an allegation or giving information that later turns out to be false is still protected under the Equality Act if it was done in good faith.

Although the employer in the next case succeeded in overturning a finding of victimisation, the case remains a good example of the potential risk to employers of liability for victimisation when dismissing employees who make even false allegations of discrimination.  

In that case, the Claimant persisted in coming to work dressed in jeans which he knew was a breach of the employer's dress code.

On the second occasion he was sent home to change and he promised that he would dress more appropriately in future. The third incident occurred the following week.

When challenged about his breach of the dress code on the second and third occasions (and in the subsequent disciplinary and appeal hearings), the unrepentant Claimant accused the company of sex discrimination in its application of the code by permitting women employed in the Finance Department (not the Claimant’s department) to wear casual clothes to work.

He was dismissed after a disciplinary hearing for breaching the dress code and disobeying management instructions not to wear jeans to work.

The Claimant brought claims of sex discrimination and victimisation in the employment tribunal. [He was unable to claim unfair dismissal because he did not have the necessary two years’ continuous service.]

Although the tribunal dismissed his claim of sex discrimination because the "no jeans" rule was enforced in his department irrespective of sex, it upheld his claim of victimisation, ruling that "his questioning of the application of the dress code" was a significant contributory factor in the decision to dismiss him.

Allowing the employer’s appeal, the EAT said that the tribunal had asked itself the wrong question.  The question the tribunal should have asked itself was whether the Claimant’s allegation of sex discrimination was a significant contributory factor in the decision to dismiss him, not whether the Claimant's ‘questioning of the application of the dress code policy’ amounted to such a factor.

Comment

In raising the allegation of sex discrimination in good faith, the Claimant had done a protected act under the victimisation provisions of the Equality Act 2010. However, the tribunal failed to consider whether that allegation was a significant factor in the decision to dismiss him.

There have been many cases in which the tribunals have rejected victimisation claims by employees who were dismissed after making allegations of discrimination because in those cases the true reason for dismissal was separable from the employees' allegations.

For example, in one case, a deputy school head prepared a document complaining about the capability process the school was taking against her. In it she stated that the head teacher "is a bully and a closet racist". She intended to send the document only to her trade union representative, but accidentally emailed it to 20 members of staff. She apologised to the head for the inadvertent sending of the email, but not for its contents. She was dismissed and brought a victimisation claim. A tribunal accepted that the accusation of racism was a protected act under the EqA 2010. However, it concluded that her comment about the head was not a reason for her dismissal. The governors' decision to dismiss was for the serious consequences of the claimant's undermining the head teacher. There had been a breakdown in the relationship which was irretrievable and which would be very seriously damaging to the school. The EAT upheld this decision.

In practice, it can be difficult to know when the reason for dismissal is genuinely separable from the protected acts and this will depend very much on the facts.

Disclaimer

This article is not a substitute for legal advice. The information may be incorrect or out of date and does not constitute a definitive or complete statement of the law. This article is not intended to constitute advice in any specific situation.  You should take legal advice in specific situations and not to rely on the information in this article.