Victimisation at Work: A Grievance Too Far
17 June 2014

Victimisation at Work: A Grievance Too Far

by Andrew Sugarman

“The usual fortune of complaint is to excite contempt more than pity” - Samuel Johnson

Employers are generally, rightly, cautious when it comes to dealing with employees who have lodged numerous grievances, particularly if those grievances involve complaints of discrimination under the Equality Act 2010 or “whistle-blowing” (i.e. making “protected disclosures” under the Employment Rights Act 1996). Such complaints or disclosures come with the right not to be subject to any detriment or dismissal as a result.

However, if an employee continues to make repeated, perhaps lengthy, complaints and becomes difficult if not impossible to manage, what is an employer to do? Does such an employee have protection to embark on an unrelenting campaign with impunity? In summary, the simple answer is no.

The law has long since recognised the distinction between a protected act and features properly separable from it. For example, hacking into an employer’s computer system to show it is insecure is separable from the otherwise protected disclosure of the fact it is (Bolton School v Evans [2006] EWCA Civ 1653). In Martin v Devonshires Solicitors [2011] ICR 352, the EAT thought it obvious the manner of a complaint could be separable from the fact of it (e.g. if a genuine complaint of discrimination was accompanied by “threats of violence”). In Martin the EAT arguably went further and regarded as separable the fact the allegations being made were false and that was something the claimant would not and was never likely to accept as a result of her mental illness.

Woodhouse v West North West Homes Leeds Ltd [2013] I.R.L.R. 773 appeared to seek to restrict Martin to its rather unusual facts. After 2 legitimate and upheld grievances, Mr Woodhouse made multiple ill-founded discrimination complaints over a 4 year period that were “substantially without any evidential basis”. Nevertheless, the EAT overturned the ET and found they were protected acts which had not been made in “bad faith” (which would have resulted in protection being lost) such that the termination of his employment because of a breakdown of trust and confidence after the 10th grievance was an act of unlawful victimisation. The falseness of the allegations and persistent grieving were not "genuinely separable features". It was suggested Martin would only apply in exceptional cases.

A different division of the EAT has now downplayed Woodhouse in favour of Martin, making clear there is no additional requirement, that when identifying separable features of a protected disclosure or discrimination complaint, the case has to be exceptional.  In Panayiotou v Chief Constable Paul Kernaghan and the Police & Crime Commissioner for Hampshire UKEAT/0436/13/RN, the claimant initially made “protected disclosures” which were largely upheld. However, he remained unhappy and began “a campaign” which encompassed various grievances. He would not accept any answer save that which he sought and when not satisfied with the action taken, he would pursue the matter to ensure that his view prevailed. He was eventually dismissed as a result.

The EAT agreed that the fact of repeated protected disclosures did not mean that after a time, they lost protection. However, there was a distinction between the protected disclosures and the manner of his campaign which took up vast amounts of management time. A dismissal for the latter was not unlawful.

I am currently awaiting judgment in a case where the employee relied upon over 100 protected disclosures contained in nearly 50 separate lengthy grievances. I have dealt with a number of not dissimilar cases and my impression is that these situations are not uncommon, particularly in the public sector. It may be difficult to know where the line is between a protected allegation / disclosure and the manner in which it has been (repeatedly) made. However, it is important to know there is such a line and tribunals, backed by the EAT, are seemingly not afraid to identify when it has been crossed.