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Unfair Dismissal and Discrimination; David and Goliath

This week saw Newcastle United found guilty of disability discrimination and former Leeds United employee Lucy Ward win her claim of unfair dismissal and sex discrimination.  Whilst the level of compensation in both cases is yet to be determined, it serves as a timely reminder that David can win the battle against Goliath in legal proceedings.  Employers should not let themselves be lulled into a false sense of security that their stature will act as a deterrent to staff considering legal action against them.  Here I take a look at the details of the Lucy Ward case and offer my top ten learning points.

Ms Ward, who had worked for the Club for 17 years, claimed she was sacked because she was in a relationship with the Club’s former head coach, whilst the Club professed she had been dismissed for exceeding her holiday entitlement.

Ms Ward reported that she had been given permission to be away from work for a period of two months to commentate on the 2015 Women’s World Cup.  The Club however stated formal permission had not been granted at a senior level as Ms Ward had only emailed her line manager.  Whilst away working, a colleague informed Ms Ward that the locks to her office had been changed.  Upon her return, Ms Ward was suspended from work and later dismissed for exceeding her holiday entitlement.  Ms Ward claimed the real reason behind her dismissal was her relationship with the Club’s former head coach.

Various evidence was presented before the tribunal including that the Club’s Chairman, Massimo Cellino, was reported to have made the decision to terminate Ms Ward’s employment because she and the former coach came as a “a pair”. This view was determined by the Tribunal to be sexist.  As was a comment allegedly made by Mr Cellino that “football is no place for women, they should be in the bedroom or the beauticians”.

Considering all of the evidence, the Employment Judge in the case determined that Ms Ward’s relationship had been the real reason for her dismissal and that there had been a gross unreasonable breach of the “basic principles” of the ACAS Code.

Here my top ten learning points from this case:

1. Have clear procedures in place regarding requesting annual leave.  Consider who requests should be made to and how far in advance these must be made.  Ensure you keep written records of all requests and responses.

2. If you have an urgent need to suspend an employee and this cannot be done in person, consider other means of verbal communication such as a telephone call or skype call.  Other staff within your business (save for management involved in the process) should not be aware of the pending suspension before the employee.

3. If you are considering dismissal, ensure your investigation is thorough.  Interview the employee to obtain their initial response to the allegations and then follow up any possible explanations they may present before decide whether disciplinary action is warranted.

4. Misconduct or Gross Misconduct? Consider the allegations against the employee carefully.  Never try to ‘dress up’ an issue that is not gross misconduct as exactly that.  If it’s misconduct, rather than gross misconduct, you shouldn’t be considering dismissal.  Likewise, if it’s a performance issue or a genuine redundancy scenario, follow the correct procedure.

5. Ensure any dismissals are procedurally fair and your disciplinary procedure is largely based on the principles of the ACAS Code of Practice for discipline and grievances.  Even where you have a fair reason to dismiss an employee, they could still bring a successful unfair dismissal claim if the procedure you followed when dismissing them was unfair.

6. Appeals are an important part of the disciplinary procedure for employers as well as employees.  If you can see merit in the employee’s appeal, see procedural issues or think the penalty imposed initially was too harsh, look to take corrective action on appeal.  It is better to reduce a sanction, which could include reinstatement, on appeal than face a possible tribunal claim.

7. Ensure you have a clear equal opportunities and anti-harassment and bullying policies in place and that staff are aware and understand them.  These govern discriminatory behaviour in the workplace.

8. Train your staff on equality in the workplace.  Employers can be held liable for the discriminatory actions of their employees where they cannot evidence they have done everything in their power to prevent discriminatory behaviour.  Roll out equality and diversity training and ensure this is mandatory for all staff, whatever their position within the business.

9. Take action against those who discriminate within the workplace.  Just because the victim hasn’t lodged a complaint against the perpetrator, doesn’t mean you should let it slide.  Discriminatory conduct is likely to amount to gross misconduct and by failing to take action, employers could open themselves to claims of constructive dismissal.

10. If in doubt, seek advice!

Disciplinary issues can be a minefield.  What seems straightforward at first can easily escalate and this leads to mistakes being made and procedures forgotten.  I can expertly guide you through any disciplinary or other procedure so if you have any queries, please contact me on 0113 350 4030 or at hello@scesolicitors.co.uk.

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SCE Solicitors is a boutique employment law and dispute resolution practice based in Leeds which advises clients nationwide.  Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

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