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When employees appear to protest too much

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In light of the sexual harassment claim brought by former John Lewis employee Konstantinos Kalomoiris being dismissed by the employment tribunal recently, it’s probably a good time to look a little closer at some of the issues it raised.

So, firstly, how is harassment defined? It seems the tribunal didn’t believe his account and took the view the slap/pat, which the female colleague claimed was on his back, did not amount to a ‘violation of his dignity nor did it create an intimidating, hostile, degrading, humiliating or offensive environment’, which is required to amount to harassment.

Another key factor here seems to have been the fact he had brought a number of formal complaints/grievances - all of which had to be investigated and were dismissed internally. This will have been cogent evidence of his predisposition to make allegations of a trivial nature and it would appear that there had been an attempt to have his claim struck out at an earlier hearing.

He claimed sex discrimination alleging that the manner and response in which his claim was treated would have been different had it been a woman complaining about a man. But of course the company was entitled to argue that they may equally have dismissed such a trivial claim by a woman if after a full investigation, they made a similar finding.

So what, if anything can employers do if they find they have an employee who is a ‘Serial’ complainer?

Paul Grindley, Head of the Employment team at Yorkshire Law firm Keeble Hawson LLP looks at a recent case:

“There is recent case law, decided end of last year, suggesting that employers may in extreme cases discipline and even dismiss workers who repeatedly complain for no good reason - although this would run the risk of a separate claim for victimisation. This case involved a secretary in a firm of solicitors who made repeated claims.”

Ms Martin was employed as a legal secretary by Devonshires Solicitors from February 2006. In January 2008 she submitted a written grievance which set out her belief that her previous employer had informed some of the partners at Devonshires that she had brought a sex discrimination tribunal claim against it.

Ms Martin alleged that she had suffered "harassment/victimisation" at Devonshires as a result, and that two of the partners had made discriminatory comments to her. The grievance investigation found that none of the partners had been previously aware of Ms Martin's claim against her previous employer, that no discriminatory comments had been made, and that Ms Martin's grievance had been brought maliciously and in bad faith. Ms Martin's grievance appeal was dismissed.

Ms Martin went on sick leave in February 2008 with stress-related symptoms. She subsequently lodged seven further grievances alleging discrimination or victimisation and commenced a claim for harassment and victimisation in the employment tribunal.

Devonshires sought a report from an occupational health consultant and learned for the first time that Ms Martin had a history of mental ill-health. In July 2008 Devonshires obtained a further report from a consultant psychiatrist, Professor Hirsch, who advised that Ms Martin suffered from a recurrent depressive illness, with psychotic episodes during which she suffered paranoid delusions. His view was that Ms Martin's belief that two of the partners had made discriminatory comments was probably an auditory hallucination. He also considered that there was a risk of relapse, which could occur spontaneously.

Paul concludes:

“This latter case will be welcomed by employers as it confirms that in some circumstances it will be fair to dismiss an employee because they have raised unreasonable, multiple grievances which have led to an irretrievable breakdown in the relationship between employer and employee.”

“However, employers should still regard dismissal as a last resort in such cases. The EAT were careful to stress that it would only be in limited cases that dismissing an employee in such circumstances would not be victimisation. As the EAT noted, "employees who bring complaints often do so in ways that are, viewed objectively, unreasonable", but made it clear that employers who object to "ordinary unreasonable behaviour" such as the use of "intemperate language" or "inaccurate statements" will still be treated as objecting to the complaint itself.”

Paul can be contacted at paulgrindley@keeblehawson.co.uk
 

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