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3 Things We Learnt In Law This Week (4 April 2019)

Bar Manager Choked By Colleague At Christmas Party Wins Tribunal

A bar manager who was choked at the Christmas Party by her manager has won over £6,000 in damages after, when she reported the incident, her manager joked to the perpetrator “Alright buddy? Hear you’ve been choking girls lately”.

A bar manager who was left with anxiety, PTSD and partial facial paralysis after she was choked by a colleague at a staff Christmas party was constructively unfairly dismissed, Cardiff Magistrates Court has found. 

Phillips reportedly told the tribunal how one of the business’s co-directors, Jason Pearce, had been heard joking about the incident, in which the club’s chef, Mr Webb, had allegedly gripped Phillips’ neck and left her unconscious. 

The incident reportedly took place on New Year’s Day 2017 on the club premises. CCTV footage showed Webb put his arm around the bar manager’s neck. After a few seconds, she tried to push him off before going limp and falling to the ground. It was then that other members of staff realised something was wrong and rushed to Phillips’ aid. 

Phillips told the tribunal that when she woke up the next day she had no recollection of the incident and believed she had suffered a stroke. She had slight facial palsy which was caused, doctors said, by “lack of oxygen or nerve damage”. It was only after she returned to work to check CCTV footage from the night that she realised the incident had occurred. 

The court found the directors’ response to the CCTV evidence was unsatisfactory. The tribunal heard that while Pearce had accepted the footage showed an assault, Huw Davies, the company’s co-director, denied it showed the bar manager being strangled. 

Webb was initially arrested but was released under investigation. He still works at the bar. 

Phillips initially returned to work and did not wish to take further action. However, she grew increasingly uncomfortable and distrustful around Webb. She told her employers she had begun lose faith in their ability to keep her safe in her workplace and felt she had no other option but to quit after they failed to take her complaint seriously. 

Following a November hearing, Judge Frazer concluded 24-year-old Molly Phillips’ resignation amounted to an unfair dismissal after bosses at the city’s Cameo Club failed to properly investigate her complaint and she was awarded over £6,000 in compensation. 

Gay Head Teacher Suffered Sex Discrimination Over Dating App Threesome

A gay head teacher has won a sex discrimination case against a primary school which sacked him for having sex with two teenagers he met through a dating app.

Mr Aplin had been working at Tywyn Primary School in Port Talbot, Wales, as deputy head teacher since 2009, and was promoted to head teacher in September 2015. 

In August 2015, he met two men through the LGBT dating app Grindr and, after two meetings, the three of them had sex together. Both men were 17, although it was Mr Aplin’s case that the app requires users certify they are over 18, and he was led to believe both were older than 17. 

The matter came to the notice of the police and the Local Authority’s Social Services Department.

The disciplinary panel dismissed Mr Aplin, finding that although his conduct was not a breach of the criminal law, it called into question “his judgment as to undermine the necessary trust and confidence in him”.

Mr Aplin appealed the decision but eventually resigned in August 2016. He complained there had been a “totally inept and unfair investigation” which influenced the disciplinary panel. 

The Employment Appeal Tribunal (EAT) ruled the school’s governors decided to dismiss Mr Aplin, who was openly gay, despite both the police and his local authority bosses deciding no criminal offence had been committed during the liaison.

Both the initial employment tribunal (ET) and the EAT criticised the report into the investigation, which formed the basis of Mr Aplin’s dismissal, and ruled that the report’s author had treated the headteacher less favourably than he would a hypothetical comparator because of his sexual orientation.

The EAT upheld the ET’s ruling that neither a hypothetical heterosexual man who had sex with two 17-year-old women, nor a heterosexual woman who had sex with two 17-year-old men, would have been treated in the same manner.

Woman Who Couldn’t Access Emails While On Maternity Leave Was Not Discriminated Against

A woman on maternity leave was unfavourable treated, but not discriminated against, during a redundancy exercise after her employer sent an important email to an address she could not access, the Employment Appeal Tribunal (EAT) ruled.

Emma Pease, who worked as a health trainer for South West Yorkshire Partnership NHS Foundation Trust, was on maternity leave when she was identified as one of several employees at risk of redundancy.

However, as she did not have her work laptop with her while on maternity leave, she did not receive the email notice of three potential new job postings which required her to fill in a form and return it to the trust’s HR department as soon as possible.

On 23 July 2016 she attended a staff consultation meeting which detailed plans for redundancy and the consultation timeframe, but no one contacted her immediately afterwards about the process. 

The trust contended Pease had been offered a post known as the “Walk Well” job in Barnsley on 29 September, but she was adamant the job had never been offered. The tribunal heard the trust relied on an “email chain to support their contention”, but Pease was not able to access her work email to fill in the redeployment document and return it to HR. 

As a result, she did not get notice of the email or fill in the form for several days, and Pease’s employment contract terminated on 2 October. 

In a claim against the trust on 12 March 2018, a Leeds tribunal ruled Pease was unfavourably treated because she had exercised her right to take maternity leave. The judge found the communication with her work email which she was unable to access “left her in ignorance of three job opportunities” and “not having access to that information led to a legitimate concern” she was “being kept out of the loop”. 

The trust appealed the judgment to the EAT, which found the initial tribunal did not properly approach the question of causation to justify the unfavourable treatment finding. 

Judge Shanks, who presided over the EAT hearing, said having an important or urgent work message sent to an email address that was for some reason inaccessible seemed to amount to unfavourable treatment “one way or another”, but remitted the case to a further tribunal to consider if there was a cause of the unfavourable treatment. 

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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