VICTIMISATION
The claimant in the employment tribunal was dismissed after a short period of employment. The respondent’s case was that it had done so because of a large number of incidents, in a short space of time, in which he had badly undermined, upset or been rude to a number of colleagues.
The claimant, acting as a litigant in person, complained that he had been stereotyped as a sexually-aggressive black man, and dismissed because of both race and sex. He also claimed that he had complained, in a conversation and then an email, about the conduct of a female colleague towards him being over-personal in a manner that he considered amounted to harassment related to sex, so that he had done protected acts, and that his dismissal was an act of victimisation.
At a preliminary hearing an employment judge made deposit orders in respect of the direct sex and race discrimination claims. He did not err by so doing. At the full merits hearing, the tribunal erred by proceeding on the basis that it did not have the power to consider an application to extend time for paying the deposits retroactively. Sodexho Limited v Gibbons [2005] ICR 1647 applied. However, on further consideration the tribunal properly concluded that that application was unmeritorious.
The tribunal also ultimately did not err in its final approach to the question of whether four of the claimant’s former colleagues should be required to attend the hearing under witness orders.
The tribunal in its reserved decision held that the claimant had not, in fact and law, made protected disclosures in a conversation with a manager, and then an email to her the next day. It also held that, in any event, if that was wrong, such disclosures were not the reason for dismissal.
Some lack of detail in the reasoning of the tribunal on these two points would not, by itself, have led to the challenge to those decisions being upheld. Nor did the fact that the respondent’s counsel was a member of the same chambers as the part-time judge give rise to an appearance of bias, or need to have been disclosed by the judge. A challenge to that effect was therefore not upheld. Nor were any of the claimant’s criticisms of the judge’s conduct of the hearing as unfair to him upheld.
However, the claimant also complained of the extent to which the tribunal’s decision dwelt on his conduct as his own representative during the hearing, the strong language that the tribunal used to describe this, and the way in which it drew on this in support of its conclusions on the substantive issues. He also drew on remarks made by the lay members when commenting on issues in the appeal that had been raised with them by the EAT. The EAT rejected the claimant’s suggestion that he had been stereotyped (subconsciously or otherwise) by any member of the tribunal. However, standing back and considering these features in the round, the fair-minded informed observer would conclude that there was a real risk that the tribunal’s view of the claimant’s difficult and challenging behaviour during the course of the hearing had engendered an antipathy towards him which had unconsciously influenced the tribunal’s collective decision on the two critical issues raised by the victimisation complaint. Those issues were therefore remitted for rehearing before a freshly-constituted tribunal.
Judges:
His Honour Judge Auerbach
Citations:
[2022] EAT 85
Links:
Jurisdiction:
England and Wales
Employment
Updated: 07 June 2022; Ref: scu.678305