The Employment Appeal Tribunal (“EAT”) has recently confirmed that the dismissal of an employee who repeatedly raised false grievances alleging discrimination by her employer will not constitute victimisation where the employer can show that the reason for dismissal was not the grievance itself but a particular feature of it which can be treated as separable from the complaint.
In the case of Martin v Devonshires Solicitors, Ms Martin, a legal secretary, raised a number of grievances alleging that she had suffered harassment and victimisation as a result of a claim she had lodged against her previous employer for sex discrimination. Devonshires obtained a medical report which advised that Ms Martin had a history of mental illness and that she suffered from paranoid delusions and psychotic episodes. The report stated that the allegations which Ms Martin had raised were probably based on hallucinations. The report also stated that there was a risk of Ms Martin having a relapse in the future and that future episodes could occur spontaneously. Despite this, Ms Martin continued to insist that the allegations she had raised were true. Devonshires subsequently made the decision to terminate Ms Martin’s contract of employment on the grounds that there had been a breakdown of trust and confidence between them. Ms Martin lodged claims of unfair dismissal, sex discrimination, disability discrimination and victimisation with the Employment Tribunal.
All of Ms Martin’s claims were dismissed by the Employment Tribunal. The Tribunal acknowledged that the fact that she had raised a series of grievances against Devonshires had formed part of the relevant background that led to her being dismissed. However, it held that it should not adopt a “but for” test and should instead consider specifically what it was about Ms Martin’s conduct which motivated Devonshires to dismiss her. It held that the dismissal was not because she had raised allegations of discrimination, but it was the repeated and serious nature of those allegations, Ms Martin’s failure to accept that the allegations were false and the likelihood of further disruptive conduct in the future and subsequent management difficulties in dealing with such further complaints that lead to the decision to dismiss her. The Tribunal was satisfied that anyone, whether they had a disability or not, and who had raised the same false allegations in the same manner as Ms Martin would have been dismissed.
Ms Martin appealed to the EAT in respect of her claims for unfair dismissal and victimisation only.
On appeal, the EAT upheld the decision of the Employment Tribunal. It held that, in principle, a respondent may say that it dismissed an employee in response to a protected act such as a complaint of discrimination but that the reason for the dismissal was not the complaint itself but the manner in which it was raised. The EAT gave the example of an employee who legitimately raises a grievance but accompanies it with a threat of violence against his manager and pointed out that it could not be intended that the employer could not take action against the employee for the way in which they raised the grievance. It held that the Tribunal had correctly distinguished between the complaints brought by Ms Martin and the series of features of the complaints which were properly separable from the complaint itself and which had in fact been the genuine reason for Ms Martin’s dismissal.
This decision should not, however, be seen as giving employers carte blanche to dismiss employees who raise grievances on the grounds that the dismissal is due to the manner in which the grievance was raised. The question of which features of a complaint can and cannot properly be separated from the making of the complaint itself will be a question for Tribunals to consider on a case by case basis. However, the EAT commented that if employers take action against employees for “ordinary” unreasonable behaviour in raising grievances such as raising a grievance containing inaccurate statements or intemperate language they will most likely be treated as having objected to the complaint itself rather than the manner in which it was made and potentially face a claim for victimisation.