Who is REALLY the Victim Here?
June 6, 2013 2 Comments
The recent EAT decision in Woodhouse v West North Homes Leeds is enough to make any employer’s hair stand on end but, on the facts, it would seem to be the right one, legally speaking if not on any other basis. In this case, Mr Woodhouse claimed that his dismissal by his employer amounted to victimisation because he was dismissed for carrying out protected acts (bringing discrimination proceedings/raising grievances relating to discrimination). Such acts will always be protected provided they are carried out in good faith even if the allegations of discrimination are misguided.
Mr Woodhouse, who is black, had, over a four year period, lodged ten internal grievances against his employer. His grievances contained baseless allegations that he was being discriminated against because of his race. In addition, he brought seven (unsuccessful) employment tribunal claims against the same employer, none of which were found to have had any basis in fact either.
Many of you will be amazed that he managed to remain in employment for so long but eventually his employer did dismiss him, citing a fundamental breakdown in trust and confidence. He (unsurprisingly) then brought a victimisation claim. The employment tribunal, however, held that the dismissal did not amount to victimisation because the employer would similarly have dismissed any employee (irrespective of race) who had brought a similar number of merit-less grievances and claims. I, personally, give the employer credit for holding out for so long and it would seem that the employment tribunal felt the same way. However, this judgment was clearly wrong as a victimisation claim does not require a comparator – that is only required in a straightforward discrimination claim. To succeed in a victimisation claim, the Claimant need only establish that the less favourable treatment was as a result of his having,carried out a protected act in good faith. In this case, there was no finding of bad faith which is why, on appeal, the EAT overturned the tribunal’s decision.
This is a really quite extreme example of how an employer can be damned whatever it does and I would argue that the definition of victimisation should be amended in light of it so that an act relating to a specific allegation of discrimination be no longer protected if it is repeated more than twice during a period of, say, two years (with this caveat being restricted to cover only cases where the allegations of discrimination are held to be unfounded).
I would be very interested to know your thoughts.