A recent case illustrates the risk employers face every time they receive a grievance in relation to a victimisation complaint.
If the grievance has any kind of discrimination angle to it, bullying harassment or an argument about less favourable treatment because of a protected characteristic or an allegation that the employer has failed to make reasonable adjustments to accommodate a health issue, the employer also runs the risk of a victimisation complaint.
The raising of the grievance, if it references the protected characteristic and allegations of some form of discrimination, becomes a “protected act”. If, as a result of that protected act, the employee then suffers some other detriment, this will give them grounds to claim victimisation.
This can be as simple as suffering the consequences of colleagues knowing that a grievance has been raised and behaving differently towards the person who has raised the grievance as a result. For example, a manager who has been accused may be very angry about the accusation that has been made or other colleagues who are interviewed as witnesses in the grievance process might change their behaviour towards the individual, “sending them to Coventry” or even telling them that they agree with what the employee has done. One of the first mediations that I was ever involved with, involved this scenario where a colleague clearly felt a manager didn’t deserve to be criticised by the other employee who had raised a grievance.
A recent case that illustrated this, was a case against Online Travel Training Group Ltd by Mr Weinreb. He was a Business Development Manager and had some kind of altercation with a Finance Manager after asking for her help. It sounds as though the Finance Manager didn’t like the employee and felt he should have known how to do the things he was asking for help with. The Tribunal felt that she goaded him and created conflict. Another colleague implied Mr Weinreb had been Jewish during a discussion about team work, and he also alleged that a conversation about the gay dating app ‘Grinder’ implied his colleagues thought he was a closet homosexual.
The case ended up in cross-grievances – the Finance Manager raised a grievance against Mr Weinreb because he recorded a conversation held about his commission. Mr Weinreb raised a grievance alleging discrimination and complaining about how an employment review meeting had been held.
Faced with the cross-grievance, the Managing Director missed the opportunity to go to a mediator and really get to the bottom of what was going on between the two individuals. Instead the pair were told that they should only communicate with each other by email (Tip: never go down that route).
Matters were investigated but played down – the Finance Manager was reminded of her obligation to show respect to her colleagues. Mr Weinreb attended a Grievance Outcome Meeting with the Managing Director who sounds like she lost her temper. At one point, she banged on the desk and told Mr Weinreb that she was very upset and offended by his allegations of discrimination about his colleagues (Tip: never do this!).
Mr Weinreb clearly didn’t feel listened to and this is a very important part of any grievance process and so appealed the grievance outcome.
The company subsequently dismissed Mr Weinreb for his “unacceptable conduct”. The Managing Director felt that his allegations had been spurious.
The banging on the table at the grievance outcome and failure to give Mr Weinreb any details about why his employment was being terminated were the acts of victimisation in this particular case. It was found that the Managing Director would not have behaved in the way that she had, had the employee not complained of discrimination in the first place.
Since employers are vulnerable to the emotional responses of those accused in grievances and those around them, it is very important that employers must always make it clear to those involved that any mistreatment of the employee who has raised a grievance will, in itself, be a disciplinary issue and that they are alert to their behaviour so that they can take action when necessary.
3 June 2021