Don’t look back in anger…
Take care with grievances from former employees.
Responding to a written grievance from an employee involves time and effort that most employers would rather direct elsewhere. So, where a grievance is received from a former employee with less than the 2 years’ service required to bring an ordinary unfair dismissal claim, it can be tempting not to give it full attention. However, a recent case in the Employment Appeal Tribunal (EAT) demonstrates the dangers of adopting a blasé approach.
The case concerned Miss Otshudi, who was summarily dismissed by her employer Base Childrenswear Ltd after only three months’ service. Base initially presented the dismissal as a redundancy. Miss Otshudi questioned whether her dismissal was race-related and submitted a grievance and an appeal against the decision. When Base did not respond to her grievance, Miss Otshudi became depressed and brought a claim for racial harassment. Base then changed its rationale for the dismissal, claiming it was because of an alleged theft.
The EAT was not persuaded by Base’s inconsistent explanations of its treatment of Miss Otshudi. It upheld a finding that her dismissal was racial harassment and a hefty damages award of over £20,000, the majority of which was for injury to feelings arising from the dismissal. The award included an ‘aggravated damages’ element because of Base’s poor conduct (both towards Miss Otshudi and during tribunal proceedings), plus a 25% uplift on account of its failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures.
The EAT’s decision provides several takeaway points for employers. Firstly, it highlights the value of communicating a clear and genuine reason for dismissal in all cases, regardless of an employee’s length of service. Secondly, it demonstrates that even a one-off act of harassment, such as a dismissal, can result in substantial compensation for discriminatory treatment. This is discussed further in article 2.
The case also indicates that the ACAS Code applies to grievances submitted by former employees as well as existing ones; employers that ignore or dismiss such grievances out of hand therefore place themselves at risk. While a specific set of facts may provide grounds not to respond or to follow an expedited process, employers should seek advice on their position in each scenario.