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Recent Tribunal rulings and statutory awards to haunt you!
Flexible working – indirect discrimination
A mother has recently been awarded nearly £185,000.00 by an employment tribunal after her flexible working request was denied, but why?
Well, Alice Thompson put in a statutory flexible working request to work shorter hours so that she could pick up her daughter from school. Her request was to work four days a week until 5pm rather than 6pm. This was rejected on the basis her employer could not afford for her to work part-time. The request was made prior to the Covid-19 Pandemic so this would not have swayed the decision.
Alice’s request was not fairly considered, and a fair and thorough process was not followed. The tribunal ruled that the rejection placed the employee at a disadvantage.
Alice’s claim for indirect discrimination in relation to the flexible working request, was successful however, her claims of pregnancy and/or maternity discrimination, harassment and unfair dismissal where rejected.
Would you have granted this flexible working request? Would you have thought a simple request could cost you £185,000.00?
Unfair dismissal – Spooky Cupboard
The tribunal recently ruled that a teacher Mr Basit was unfairly dismissed after joking that a pupil who was misbehaving in class should get into a haunted cupboard. It was a running joke that the cupboard was haunted.
The student made a complaint asserting that Mr Basit forced them into the cupboard. Mr Basit wrote a statement confirming his version of events which stated that he had jokingly told the misbehaving pupil to go into the cupboard. As the pupil did so Mr Basit entertained it but took the pupil out of the cupboard as soon as it was clear the pupil wouldn’t leave themselves.
Mr Basit was suspended pending a brief investigation and was later invited to a disciplinary hearing. The evidence which consisted of the pupil’s version of events and that of their friends was submitted as evidence. Despite there being several inconsistencies and suspicion of collusion. This pupil had 364 entries for their behavioural conduct on file, whilst collaboratively the pupil and his friends had over 1,075 entries of behavioural issues which included dishonesty. Mr Basit had a clear record since starting with the school in 2012.
There was a previous allegation of inappropriate language 2018 but no action was taken. The school referred to this allegation in the investigation despite no further action being taken, in hopes this would show a pattern of behaviour. The decision was to dismiss Mr Basit for gross misconduct.
The tribunal ruled that the investigation did not meet the required standards because a thorough and careful investigation was not conducted and that the sanction to dismiss did not fall within the band of reasonable responses.
This decision shows the importance of carrying out the disciplinary process fairly and consistently, including a thorough investigation to consider all available evidence.
Pregnancy and Maternity discrimination – HR Firm
An expectant mother (Mrs A Rodin) went on maternity leave but within two months of giving birth she was dismissed and told to ‘go to the job centre’ for the rest of her outstanding maternity pay.
Around the same time of Mrs Rodin’s maternity leave the Company she worked for DMS1 were going through a restructure. The Company were eventually taken over around September 2017 by Dhillon’s Management Services, however, there was no change to ownership and it continued to be run by the same people.
Mrs Rodin went on Maternity leave in June 2017 and was expected to return to work in March 2018, but from August 2017 she did not receive any further statutory maternity pay and was not notified of the reason for this. In September Mrs Roddin was dismissed without notification or reason and was issued a P45.
Mrs Roddin contacted the regional manager regarding outstanding maternity pay and was told this would be investigated. Mrs Roddin heard nothing more from the manager until she contacted him again and was advised to contact Dhillon, which she did.
Dhillon allegedly informed Mrs Roddin that DMS1 had now closed and that she would receive the last 2 months of her maternity pay in her bank, and she should ‘go to the job centre for any future money’. She was informed by the job centre that it was her employer’s responsibility to pay her and that they could not assist her with this because she was already on Maternity leave with DMS1.
She made attempts to contact Dhillon again, but he failed to respond. This case was only recently resolved due to the employer’s failure to attend previously arranged tribunal hearings.
It is worth noting that Dhillons Management Service is a HR firm, who provide an HR function.
Mrs Roddin brought claims of failure to inform and consult under TUPE, automatic unfair dismissal, maternity discrimination and unlawful deduction of wages. She was awarded £50,720 and a further £12,500 for injury to feelings.
Unfair dismissal – Diabetic rage
An employee (Mr P Dytkowski) was unfairly dismissed and was discriminated against after he threatened a colleague when he experienced a diabetic rage. Mr Dytkowski was employed from 2009 until January 2019 when he was dismissed for Gross Misconduct.
There were a number of incidents involving Mr P Dytkowski which led to concerns over his temper, however no disciplinary action was taken. In December 2018 there was another altercation between Dytkowski and a colleague. The colleague made a comment to him arriving late to a meeting.
Mr Dytkowski reported that his blood sugar levels had spiked and he was struggling with his diabetes. An Occupational Health report was conducted which reflected what Mr Dytkowski had said and recommended that CBT (Cognitive Behavioural Therapy) could help manage his anger and that he should visit a diabetic nurse. The employee took the advice from OH and began CBT.
It was reported that following a diagnosis of insulin dependent Diabetes there is a period where pancreas partially begins to work, however this is short-lived, and the pancreas “dies”. Dytkowski believes at the time of the incident he was going through this change which resulted in the incident. However, the employer did not believe the diabetes influenced his actions and he was dismissed for gross misconduct. The award for this has not yet been disclosed.
