Ms Samantha Allen started employment with Abacus Care (Chesire) in autumn 2011 as an alternative therapist and support worker. Soon after she started work with her employer she came to the attention of Mr Christopher Barral, who owned the firm. Ms Allen stated that she caught Mr Barral looking down her top on one occasion and on another two occasions she was made to feel extremely uncomfortable by Mr Barral’s topic of conversation. After being employed with the firm for 19 days Ms Allen was dismissed from her employment after failing to meet the firm’s “expectations”. She subsequently filed a complaint of sex discrimination and sexual harassment at the Manchester Employment Tribunal and the case was heard earlier this summer, with a judgment being given in July 2012. The Employment Tribunal found in Ms Allen’s favour and at a later remedy hearing awarded her £24,655.41 as compensation for injury to feelings and lost earnings.
Employment Judge David Franey, sitting on the case, stated that he believed that on the balance of probabilities Ms Allen had been dismissed by Mr Barral because of her reaction to the sexual harassment. This therefore rendered her dismissal discriminatory. He further decided that Mr Barral would not have behaved in the same way with a male employee and nor would a male employee in the same circumstances have been dismissed.
Neither Ms Allen nor Mr Barral commented after the Employment Tribunal.
The qualification period for employees to obtain their right to claim unfair dismissal was increased in 2012 to two years’ continuous employment. However, this case demonstrates that if employers fire an employee in a circumstance which is discriminatory (i.e. where someone without the employee’s protected characteristic would not have been dismissed) then the employee can make both an unfair dismissal claim and a claim for discrimination.
Employers must therefore be extremely careful when dealing with the dismissal of employees. A discriminatory dismissal can mean both large payouts at the Employment Tribunal and high costs for representation if you have instructed a solicitor or a barrister to act on your behalf. Employers should have comprehensive Equal Opportunities policies and staff should be made aware of this and offered training.
Chris Hadrill, an employment solicitor at Redmans Solicitors, commented: “This case demonstrates how careful employers must be to prevent their employees – and even their owners – from discriminating against or harassing other staff members. Not only can such actions lead to discrimination claims but they can also potentially lead to unfair dismissal claims and constructive dismissal claims.”
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