REWARD
The claimant should have realised the use of the full word in a professional environment could have a serious impact. The claimant was dismissed for gross misconduct. The claimant brought claims including unfair dismissal and disability discrimination. The ET considered the respondent to have been entirely reasonable in its view that the word used was appalling and that simply hearing it is likely to be intensely painful and shocking. However, this alone didn’t render the decision to dismiss in this case fair. The question of whether the claimant should have been dismissed for using the full word was a different question to whether they should have used it. The ET held that the decision to dismiss the claimant was not within the band of reasonable responses, because the subject matter of the training session at the time the comment was made was exploring intention v effect. The claimant, in the view of the ET, didn’t ask this question to get the opportunity to use the offensive word under the guise of an innocent question, but used it to deepen their knowledge and for clarity. Indeed, the dismissing officer in this case referred to it as a ‘good question’. The ET found that on the balance of probabilities, the claimant’s dyslexia was a strong factor in their use of the full word rather than finding another way to phrase the question. The ET held that the decision to dismiss was unfair. The respondent’s aim of sending a message of a ‘zero-tolerance policy on any racial discrimination or use of racist language’ could have been met with a formal sanction rather than dismissal. In the remedy hearing, the claimant was awarded £309,867.86. This included a £15,000 injury to feelings award for the shock, hurt, humiliation and damage to their self-esteem, and loss of a job they loved. Conduct after breach vital in constructive unfair dismissal case The Employment Appeal Tribunal (EAT) had to consider, in the case of Leaney v Loughborough University, whether the claimant had affirmed the contract in a case of constructive unfair dismissal. The claimant worked for the defendant as both a teacher and a hall of residence warden, and at the point of leaving, they had worked there for 40 years. A student within the hall of residence self- harmed, and concerns were raised about the approach the claimant took in dealing with the matter. A disciplinary procedure
was conducted, and it was found there was no formal case to answer. Instead, the claimant’s manager decided to discuss their concerns informally. “The employment tribunal rejected the claim for constructive unfair dismissal, holding that the claimant had affirmed the contract by continuing to work” After this, the claimant raised an informal grievance regarding their manager’s behaviour and failure to deal with the matter. The claimant wasn’t happy with the respondent’s response to this, and an appeal was raised, which was dealt with formally. The grievance was partly upheld, and the claimant appealed the decision once again. This appeal was not taken forward by the respondent. During this time, attempts were made to arrange mediation between the claimant and their manager. However, these were unsuccessful. The claimant then resigned from the post of warden and linked this to the failure to deal with the appeal. A response accepting the resignation was sent to the claimant. This also included concerns the respondent had with the claimant’s approach to the warden role. After leaving the role, the claimant wrote to the respondent’s head of human resources, stressing the importance of the grievance appeal and asking for the specifics of the concerns raised in the resignation acceptance letter. In response, the claimant was told the matter was considered concluded now they no longer held the post of warden and that they should draw a line under the matter. A further letter was sent encouraging the claimant to end the matter, and a meeting was held on the point between the claimant and the respondent’s vice-chancellor. Eventually, and at the busiest time of the year for the claimant, they accepted that the dialogue had ended. A final attempt was made by the claimant to raise this matter once that period was over, but this was again rejected, and the claimant was left feeling that the respondent wasn’t going to help.
A month or so after this, the claimant began negotiations with the respondent via a solicitor, but nothing came of them. This, the claimant felt, was the last straw. Later in the same month, they resigned and brought a claim for constructive unfair dismissal. The ET concluded that the ‘last straw’ wasn’t the failure of the negotiations with the respondent, but the final rejection of the claimant’s attempts to deal with the matter, which happened some two months before the negotiations broke down. Looking at the claimant’s reasons for delaying the resignation, the ET did not find evidence that the respondent misled the claimant into thinking it would revisit the concerns the claimant had raised previously. The claimant was in receipt of competent legal advice at the time, and there was no indication from the claimant that they were working under protest. Based on the above, the ET rejected the claim for constructive unfair dismissal, holding that the claimant had affirmed the contract by continuing to work. The claimant appealed the decision. The EAT started by outlining the question for tribunals to start with when assessing whether a claimant has affirmed the contract in cases of constructive unfair dismissal. That question is whether there was conduct during the relevant period (i.e. between the final straw act and the resignation) which might or might not have amounted to express or implied communication of affirmation. In accordance with case law, the passage of time in such cases is not the issue; it’s the conduct or circumstances in that period which can infer affirmation. A mere delay in resignation alone would not mean affirmation of the contract. The EAT also noted that previous case law indicates that, broadly speaking, an employee with long service might reasonably need longer to decide whether or not to leave their employment, especially where there is a lot at stake for them. The EAT held that the ET had erred in law in how it dealt with the question of affirmation, and on that basis, remitted the case back to it for further consideration. The EAT also went on to find that (although not the case here), working ‘under protest’ following an employer’s repudiatory breach, where the employee indicates they’re giving the employer the opportunity to put the breach right, would not always lead to an inference of affirmation. n
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| Professional in Payroll, Pensions and Reward |
Issue 99 | April 2024
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