In HM Prison Service & Others v Ibimidun the Employment Appeal Tribunal found that it was not unfair or discriminatory to dismiss an employee found to have harassed his employer by bringing a series of vexatious claims against it.
The Claimant, a black man of Nigerian origin, was a prison officer. He commenced employment 1999 and was dismissed in November 2005.
During his employment, the Claimant had brought a number of Employment Tribunal claims against his employer which involved allegations of race discrimination. The first such claim succeeded in that it was settled for £28,000. A subsequent claim also succeeded leading to an award of £3,407.00. However, a number of his claims failed including some that were found to be misconceived and which resulted in costs totalling £6,750.00 being awarded against the Claimant.
In relation to the dismissal of one particular claim, the Employment Tribunal had found that "The motive in pursuit of this case was not to seek just compensation, but to harass his employer into a settlement by a sustained campaign of litigation. Not only was there no reasonable prospect of success in the case, but he had no genuine belief that he had such a reasonable prospect." The employer relied on that finding as the basis of a decision to dismiss the Claimant, in that it concluded that in bringing Employment Tribunal claims which were unreasonable, vexatious and unfounded, his actions amounted to harassment.
The Claimant subsequently presented a claim of victimisation pursuant to the Race Relations Act 1976 and unfair dismissal. Victimisation occurs where an employer subjects an employee to a detriment or dismissal by reason of a the employee having done a "protected act", the definition of which includes the bringing of Employment Tribunal proceedings alleging discrimination. However, there is no "protected act" if the act in question constitutes a false allegation not made in good faith.
The Employment Tribunal found that the employer had dismissed the Claimant as a consequence of the Claimant bringing Employment Tribunal proceedings which amounted to "protected acts" and so his claim of victimisation and unfair dismissal succeeded.
The employer appealed. In overturning the Tribunal decision, the EAT made the following key findings:
- the victimisation provisions existed to protect individuals who had brought bona fide claims and not proceedings that were brought for the purpose of harassing an employer and other employees: such proceedings were not "protected acts";
- the dismissal in such circumstances which, amounted to misconduct, was not unfair.
This decision is a useful reminder that while the victimisation provisions under the various discrimination acts offer wide protection to employees, there are limits to that protection and false allegations or claims that are not made in good faith are not protected. That said, it is likely to be a difficult task for an employer to be able to show that allegations have been raised maliciously and it will rarely be the case that an employer has the benefit of an Employment Tribunal decision to that effect on which it can base a decision to dismiss.
This judgment should not, therefore, be seen a giving a green light to the dismissal of all serial claimants and grievers who persistently bring complaints. However, where the employer has reasonable grounds to conclude that such complaints are not presented honestly and good faith, dismissal may be justified.