Employment Tribunal, a very unpredictable business

29 June 2015

At one extreme, more than 100 Stoke-on-Trent factory workers were relieved to be awarded £3,000 for unfair dismissal by their failed employer. At the other, a high flying City banker doubts her multi-million pound award was worth the fight. For both, legal representation was key. Yet the banker said most of her £3.2m total award would be swallowed up by fees and the taxman.

These two cases, amongst many others we look at below, highlight the continuing need for businesses and individuals to insure themselves against possible legal problems and for all intermediaries to redouble their efforts to convince clients of the importance of Legal Expenses Insurance (LEI). Without continuous funding, well-founded claims can too easily be abandoned. Not so when legal expenses insurance is in place to pursue or defend actions, through to appeals if necessary.

Employment tribunals often yield rulings that are surprising or complex, and it is this unpredictability that makes LEI so necessary: after all, legal costs and application fees cannot be claimed from the opponent though they are paid by the legal expenses insurer. Employment cases are by far the most frequent form of dispute under family and commercial policies, while ARAG legal helplines are constantly dealing with queries over the complexities of relevant laws and regulations.

Not every claim is going to grab the headlines yet each is important to those involved. Looking at some recent cases, there are some that challenge even the most avid tribunal watchers' opinions on likely outcomes. For a start, the 110 workers at failed copper manufacturer Thomas Bolton were made redundant but were actually unfairly dismissed.

And that £3.2m award. It took three years to conclude and had adverse health effects on Svetlana Lokhova. She was set to earn £750,000 a year at the equity sales desk of Sherbank in London's Fleet Street. However, after six months in a 'toxic atmosphere', being subjected to a vicious campaign of sexual harassment by bullying male colleagues, she was put on sick leave and forced to leave her job. While her direct boss – who had called her such names as 'Crazy Miss Cokehead', 'Miss Bonkers' and 'schizo nightmare' – had a brief 5-minute hearing before being paid off £168,000 by the Russian bank, Ms Lokhova endured a protracted legal battle to secure £44,000 for hurt feelings and £15,000 in aggravated damages for falsely accusing her of being a drug user and £3.14 million for lost wages.


Now some more divisive issues:


Freedom of religious expression

Was it right to sack an employee who told a colleague that her lesbianism 'was a sin'? Not according to a tribunal. It was the colleague that approached the Christian nursery worker for her opinion; the employer most likely dismissed her for 'stereotypical assumptions about her and her beliefs'.
Sarah Mbuyi was dismissed by Newpark Childcare in Shepherds Bush, west London, for gross misconduct but claimed the sacking breached European law on religious discrimination.
The tribunal recognised that the employer was not anti-Christian but described the complainant's belief as one that is 'worthy of respect in a democratic society, is not incompatible with human dignity and is not in conflict with the fundamental rights of others'. There was little or no evidence that Mbuyi targeted her colleague in an effort to force her faith on her.

Hate-campaign vicar had no employment rights

Faith workers such as vicars cannot be heard at tribunals because they are 'religious office holders', not employees, under Church of England ecclesiastical law. A four-year campaign seeking a landmark decision was finally dismissed in the court of appeal after tribunals were split over whether the Rev Mark Sharpe might legally be categorised as an employee or a worker.
The vicar said he faced a continuing campaign of intimidation which included his dog being poisoned, phone lines cut and his car vandalised. He argued that the church should have warned him of problems in the parish before offering him the job and insisted he should have the legal right to bring a case for constructive unfair dismissal.
Three appeal judges ruled that he was 'neither a party to a contract of employment, nor a worker' and therefore not entitled to bring a case.


Amnesia over criminal conviction costs woman a job

A woman who apparently 'forgot' her criminal conviction failed in her attempt to become a police officer. Having been a police community support officer, Rachida Sobhi applied to become a constable, declaring she had no criminal record. Checks showed she had been convicted for theft and the Metropolitan Police refused her a job because she failed to own up. She then said her amnesia was a disability and that the Met discriminated against her by not taking it into account. Having withdrawn her latest tribunal appeal, Ms Sobhi has now admitted defeat.


Too glam for football

When salacious rumours circulated that the highly successful sales and events manager at Port Vale football club was having an affair with the club's star striker, Marc Richards, she was summarily sacked, even though the allegations were untrue. Richards escaped censure despite the fact it was he who pursued Joanne Clay and he who ignored her rebuffs. When Ms Clay complained about the approaches to club CEO Perry Deakin, he allegedly told her that she was 'too attractive to work in football'. An employment tribunal found that the failure to investigate Richards was 'striking' and the club's ban on relationships between employees and footballers was 'slanted against women'. However, the club and its battery of lawyers did not back down until the appeal court upheld the tribunal decision. An undisclosed settlement was reached.


Bank manager assaults girlfriend then claims sexual discrimination

He was drunk at the Christmas party, danced provocatively with a female colleague, and later alledgedly seriously assaulted his regular girlfriend – another colleague. Yet he claimed sexual discrimination when he was sacked for his behaviour. David Haughton was manager of Lloyds bank in Lymington, Hampshire. He admitted he drank 'far too much' but argued that a woman who carried out the same attack on a man would not have been sacked. The tribunal threw out his case.


Positive drugs test didn't tell the whole story

A Bristol bus driver failed a drugs test but won £84,000 for unfair dismissal at a tribunal. A saliva test picked up traces of cocaine and he was immediately dismissed for gross misconduct. Alan Bailes had worked for First Bus for 22 years and protested he had never taken cocaine and that it must have been detected from handling hundreds of customers' banknotes on the same day. To demonstrate his innocence, Mr Bailes paid for an independent hair follicle test that showed he had not taken cocaine in the previous 90 days. The tribunal was critical of the former employer's failure to investigate his explanation and was 'wholly uninterested in exploring that sensitive but important issue'. It has been estimated that one in ten banknotes contains traces of cocaine.


One theme that runs through many cases is failure of the employer to thoroughly investigate the circumstances before taking action, or to act when advised of a problem. Referring the matter to legal advisers may have averted the need for a tribunal to decide the rights and wrongs of a case.

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