Some thorny issues for employers arise from the reported settlement last week of a sexual discrimination and harassment claim brought against Goldman Sachs by Sonia Pereiro-Mendez.
This case hit the news not because of the nature of her allegations (big City house treats pregnant woman as suddenly of much less value – all relatively usual stuff) or even the £2m+ size of her claim (again, not unheard-of in the Square Mile) but because she had covertly filmed a number of her colleagues to gain evidence of their allegedly discriminatory behaviours towards her.
We cannot know what that film showed, but there is an obvious inference to be taken from reports that the settlement was for around £1 million. This might or might not be true, but it does highlight the risk faced by any employer that its confidential settlement will somehow find its way into the news anyway. Does anyone else remember the member of Princess Di’s domestic staff who emerged blinking onto a South Croydon pavement to explain guilelessly to the world’s press that a settlement of her Tribunal claim had been reached, and that whilst she could obviously not disclose its terms, it was “like winning the lottery“. Employers beware – it is realistically impossible to prevent this.
Goldman’s much bigger prospective problem, how to deal with Ms Pereiro-Mendez after the claim had run its course, was clearly averted by her agreement to leave. It is hard to avoid the view that Goldman must have paid a high price for this, but I suspect that they will consider it worth the money. This is not a comment on the merits of her claim nor on the contents of her covert recordings, but on the fact of those recordings being made and the difficulties which they would pose for any continuing relationship with her.
You have to have some sympathy with any discrimination Claimant in this position – they need hard evidence to support their claim, only start filming once the behaviours objected to have started and are obviously not to blame if the employer chooses, however unwittingly, to behave inappropriately in front of them. On the other hand, who would easily agree to manage or work with such a Claimant post-case? The outcome would not matter – win or lose, they would still be perceived by their colleagues as someone who would use covert means to gain evidence if they felt in any way disadvantaged, even through the ordinary reversals of office life such as performance management procedures, etc. You could ask them at each meeting whether they were recording you, but best not, as you would then run the risk that (a) their answer might not be true – this would not stop the Tribunal from considering the film anyway – and (b) the degree of mistrust evidenced by the repeated question would probably amount to grounds for a victimisation claim in any case.
Where there has been press coverage of the sort seen in the Goldman’s case, you could not even resolve the issue by shuffling the employee discreetly into a separate department. You wouldn’t have to have worked with them in the past to fear a repetition going forward.
You might want the employee to leave and your thoughts might turn to the protected conversations regime – can’t we just have a grown-up chat about your pushing off since no one here really trusts you any more? But whether or not the sub-text is that we are angry mainly with ourselves for being trapped on film doing something stupid, that avenue doesn’t work – that regime specifically excludes conduct which is discriminatory.
So you could try to draw a line between the making of the discrimination allegation on the one hand (irritating, but you have no choice but to live with it), and the manner of doing so on the other (covert and immensely destructive of the necessary trust and confidence of other colleagues). The distinction is legitimate at law but very difficult in practice, especially where the recordings do show inappropriate conduct, and doubly especially if that conduct was initially denied. The line would be much easier to define and more easily crossed, however, if the employee were found to be recording at random or without reasonable grounds to believe that he/she was being treated unlawfully.
So you are left with what? A faint hope that relations will have been so comprehensively destroyed by the claim that the employee him/herself will realise that the time has come to move on, or (more constructively) proposing very gently a form of mediation “to address the trust issues”, which might equally gently then be steered towards a parting on terms. Once inside the mediation “bubble”, the possibility of a parting could be raised with far less risk than outside it.
Of course, there is nothing in the rules which says that any complainant using covert recordings of colleagues as evidence necessarily has to leave. Perhaps there are means of restoring the necessary trust and confidence through explanation, time, patience and trust. It would be foolish, though, to have no options for the occasion when they fail.