In Martin v Devonshires Solicitors the EAT found that it was not victimisation to dismiss an employee who had raised a number of unfounded grievances against her employer alleging sex discrimination. According to the EAT there were a number of factors leading to the decision to dismiss that were "properly and genuinely separable" from the fact that the complaints had been made. These included the fact that the claimant's allegations were linked to mental illness and that it was likely that similar allegations would be made in the future. The dismissal of the claimant because of a breakdown in the employment relationship caused by the grievances was not an act of victimisation.
Last week another EAT decision, Woodhouse v West North West Homes Leeds Ltd, reminded employers that the decision in Martin is applicable only in truly exceptional circumstances. The mere fact that an employee has raised a number of grievances over a period of time is not in itself exceptional.
In Woodhouse the claimant raised ten grievances alleging race discrimination between 2005 and 2010 and lodged numerous employment tribunal claims. Most of these were unsuccessful, although complaints in relation to events at the start of the period were upheld. By late 27 October 2010 the employer had concluded that the employee had lost all trust and confidence in the employer and that an on-going working relationship could not be maintained. He was dismissed on notice. The employee claimed that the dismissal was an act of victimisation because he had made the discrimination complaints.
Initially the tribunal found that the dismissal was not victimisation and that the reason for it could be properly separated from the complaints themselves. The EAT disagreed. It found that the fact that the employee had raised a large number of grievances over a long period of time and was likely to continue to do so in the future was "not unusual". In itself it was not sufficient to take the case outside the protection offered by the law on victimisation. The link between the dismissal and the allegations of discrimination had not been broken and the Martin case was not truly analogous.
The message for employers, as the EAT was keen to stress, is that the decision in Martin really should be regarded as an exceptional case and not a "silver bullet". It is likely only to be in very rare cases that an employer can rely upon it to avoid a successful victimisation claim.