The issue of less favourable treatment?

I heard a story today about an ET case that took an interesting turn.

The case related to discrimination.  The employee (we’ll call him Jim) had been bullied and discriminated against for many years by a  manager (we’ll call her Flora).    I once employed a HR Manager who had been bullied by Flora  and I spent the best part of two years trying to pick up the pieces.  So I was aware of her reputation, but I had never met her.

What frustated me is that “everybody” knew that Flora was a bully, but the senior leadership team at that Trust seemed to be blind to her behaviour.  Flora helped a lot of under-performers “move-on”, and perhaps this is the reason why?

Jim decided to tackle this issue head-on by submitting an ET1 claiming discrimination.  Not only did Jim need to demonstrate to the Tribunal that he had been discriminated against, but that he had been subject to less favourable treatment as a result.  

The case was listed for a hearing, and witnesses were called.   Flora’s line-manager took the stand, and said: 

Yes, Jim had been discriminated against….but Flora behaved like this with everybody

In other words, the Trust admitted to the Tribunal that Flora was a known bully, and that she bullied a lot of people. The Trust won their case, as Jim could not prove that he had been subjected to less favourable treatment.   Everyone had been treated badly by Flora.  

Whilst this was an interesting legal move for the Trust, what benefits did it bring?   And now that Flora is a known bully, what actions are the Trust going to take?

I don’t know Jim, but I can imagine that taking the Trust to a Tribunal was a very difficult decision to make, and I applaud him for it.  I’m just sorry that some clever lawyers found a way to defend the Trust which, in the end, does not benefit anybody.

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3 comments on “The issue of less favourable treatment?

  1. Kevin says:

    Interesting. I thought the so-called ‘Bastard Defence’ was a thing of the past, at least from 1 October (see: http://www.west-consulting.com/news/2008/04/story01.php) so this might just be an issue of timing.

  2. Ahh those pesky lawyers!

    A noticeable aspect of this example is that you don’t actually mention what grounds of discrimination Jim was claiming. Sex, race, disability, sexual orientation, religion or age?

    Bullying is not in itself something you can sue for in the Employment Tribunal. Discrimination is, but the essence of discrimination is less favourable treatment on one of those grounds. The phrase ‘Yes, Jim had been discriminated against….but Flora behaved like this with everybody.’ is a bit problematic because if everyone was treated the same way (no matter how reprehensibly) then no-one would be treated less favourably on a discriminatory ground and there could be no discrimination.

    In recent years (2003ish onwards) cases like this have been dealt with as claims of harassment which don’t require less favourable treatment as such, but do require ‘unwanted conduct’ which violates dignity or creates an offensive working environment. However Harassment must also be at least related to one of the discriminatory grounds or be of a sexual nature.

    If the evidence showed that although Jim was bullied, that was not related to sex, race, disability, religion, sexual orientation, or age then there can be no harassment claim. Morally I’m on Jim’s side, but legally he did not have a claim. The lawyers aren’t to blame for that (and didn’t have to be very clever to point it out). If you want to give all bullied employees the right to sue their employer in the employment tribunal, you’ll find that many lawyers would be happy – indeed delighted – to support you. But it would be a new right requiring a new Act of Parliament.

    Jim may have had other options – constructive dismissal, a personal injury claim or (in extreme cases) a civil claim under the Prevention of Harassment Act but unless he could show conduct related to a protected ground, his claim in the ET was bound to fail.

    • karencwise says:

      Darren,

      It was definitely some form of discrimination he was claiming, and I think he threw in constructive dismissal too. But I was just so “overwhelmed” when hearing the story that I obviously didn’t robustly question my source! Sorry! If I have an opportunity to find out at a later date I will update this post.

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