Employees who lose tribunal claims

Can it be fair to dismiss an employee for losing a tribunal claim? James English reports on a recent EAT ruling involving a school teacher.

In Ngwenya v Cardinal Newman Catholic Secondary School, the Employment Appeal Tribunal has considered the decision to dismiss an employee for making a number of spurious and unsubstantiated allegations as part of an earlier employment tribunal claim.

Facts

The claimant was employed by the school as a teacher. He had qualifications from Zimbabwe and South Africa. He was dissatisfied due to his perception that he should have been on a different and higher pay scale. He brought employment tribunal claims alleging race discrimination and unlawful deduction from wages. These were struck out on the grounds that they were out of time and had no real prospect of success respectively.

The cllaimant made a number of serious allegations about his colleagues and the school. After the proceedings, the school launched an investigation which ultimately led to the claimant’s dismissal on grounds of misconduct. In particular, he was accused of making false, inaccurate or misleading statements, and vexatious, malicious and/or frivolous complaints, both of which led to an irretrievable loss of trust and confidence. The claimant claimed that he had been unfairly dismissed.

ET Decision

The ET found that the reason given by the school for the dismissal, misconduct, was made out. There had been a fair investigation and disciplinary process (and an appeal), and the school’s decision to dismiss him fell within the range of reasonable responses.

EAT Decision

The appeal was initially rejected by the EAT upon their initial ‘sift’. The claimant challenged this and was subsequently granted a full hearing. His appeal had two grounds:

• The ET had not considered whether he was acting in bad faith, and as he wasn’t he had the right to robustly advance his views in the workplace. This element of his appeal was unsuccessful on the basis that the original disciplinary charges expressly contended that he had acted in ‘bad faith’. The ET had also noted that there had been nothing to substantiate the claimant’s allegations.
• The ET had failed to consider a comparator, who had made similar allegations without being dismissed. Although the claimant had mentioned this comparator in his statement and supporting documents in the disciplinary process, it was not raised at the appeal stage, or in the ET claim form. Further, the two employees were not comparable; the other employee had made a prompt apology for his actions.

Conclusion

Employers often feel reluctant to take action against employees who have made serious allegations about their colleagues or managers. Often it is anticipated that this might just lead to more complaints. If the employee has brought a tribunal claim, it may smack of vindictiveness. Depending on the initial allegations, the employee might also claim protection as a whistleblower or accuse the employer of victimisation (deliberately treated the employee differently and worse because they have alleged discrimination in the past).

This case will provide some comfort to employers. The threshold is not low – two key elements here are the fact that the allegations were made in bad faith (the claimant could not substantiate them in the slightest), and the manner in which he raised them led to the fundamental breakdown of the working relationship. However, as long as an employer treads carefully, there should be no reason why an employee who makes serious allegations without evidence in this way shouldn’t be called to account.

James English is a Senior Solicitor at Hempsons. He can be contacted on 0191 230 6054.