Case 1404725/2020 · Employment Tribunal
In Person For the v Respondent — 2022
- Case reference
- 1404725/2020
- Decision date
- 30 March 2022
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Smail
- Panel members
- Ms E Smillie, Mr J Evans
Parties
1 namedClaimant
In Person For the
Respondent
- —
Key findings
Tribunal's reasoningMiss Isabel Owen worked for the National Trust at Uppark House and Garden on a zero-hours flexible contract. In September and October 2019 she complained that her supervisor, Mr Felss, had made racist remarks about Jewish people, Indian people and Auschwitz, and had made comments about disabled people. The tribunal accepted that offensive comments of that kind were made, but it did not accept that Miss Hall forced the claimant to apologise, accused her of slandering Mr Felss, threatened dismissal if she would not work with him, or deliberately ignored her. It found that the respondent was trying to resolve the dispute informally under its grievance procedure and that the later formal grievance was investigated and determined without the delay or incompetence alleged by the claimant.
The tribunal rejected the constructive unfair dismissal claim. It held that none of the pleaded breaches of the implied term of trust and confidence were made out and that there was no repudiatory breach. It also found that there was a genuine redundancy situation after the Covid-19 lockdown and the respondent's Reset programme, that the claimant was consulted, and that she chose to apply for voluntary redundancy and later accepted it. On that basis, to the extent an unfair dismissal claim based on redundancy was in issue, it was also dismissed.
On whistleblowing, the tribunal held that the first complaint about Mr Felss's racist comments was a protected disclosure under s.43B(1)(b) and s.43C(1)(a) ERA 1996, but that the later complaint about Miss Hall's handling of the grievance was not a protected disclosure. It dismissed the automatic unfair dismissal claim because the dismissal followed the redundancy process almost a year later and not the disclosure. It also dismissed the detriment claim because the alleged detriments were not proved and dismissal cannot itself found a detriment claim under s.47B. The Equality Act victimisation claim was dismissed for the same factual reasons. No monetary award was made.
Claims and outcomes
4 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Constructive dismissal | The claimant said she had been forced out after reporting racist remarks by Mr Felss and after the handling of her grievance by Miss Hall and Mr MacDonald. The tribunal accepted that Mr Felss had made offensive comments about Jewish people, Indian people and disabled people, but it rejected the allegations that Miss Hall made her apologise, accused her of slandering Mr Felss, threatened dismissal if she did not work with him, or otherwise breached the implied term of trust and confidence. It found no repudiatory breach and no constructive dismissal under s.95(1)(c) and s.98(4) ERA 1996. | Dismissed | — | — |
| Whistleblowing | Automatic unfair dismissal under s.103A ERA 1996. The tribunal held that the first complaint about Mr Felss's racist comments was a protected disclosure made in the public interest to the employer, but that the later complaint about Miss Hall's handling of the grievance was not protected. It found that the claimant's dismissal arose from the later redundancy process almost a year later and not from the disclosure. | Dismissed | — | — |
| Whistleblowing | Detriment claim under s.47B ERA 1996. The tribunal rejected the factual basis for the first seven alleged detriments, and held that the eighth allegation, constructive dismissal, could not be relied on as a detriment because dismissal is excluded from s.47B(2)(b). | Dismissed | — | — |
| Victimisation | The tribunal held that the complaint that Mr Felss had made racist comments amounted to a protected act under the Equality Act 2010, and that the complaint repeated to head office was also capable of being a protected act. It nevertheless rejected the alleged detriments on the facts and dismissed the victimisation claim. |
Legal tests applied
11 references- s.95(1)(c) ERA 1996
- s.98(4) ERA 1996
- Western Excavating constructive dismissal test
- Malik trust and confidence term
- Omilaju last straw doctrine
- s.139 ERA 1996
- s.43B/s.43C ERA 1996 protected disclosure test
- s.103A ERA 1996
- s.47B ERA 1996
- s.27 EqA 2010
- s.136 EqA 2010
Official outcome judgment PDF
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Published on gov.uk under the Open Government Licence v3.0.
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