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Employment Law Case Study - Out Of The Woods
This is one of the nastiest cases I have had to deal with in 10 years. Behind the scenes an employee was being instructed by someone who knows a good deal about employment law in a deliberate attempt to relieve her employer of large sums of money. We specialise in handling grievances, so the company called us to help out.
Last year a young woman, A, raised a grievance against a colleague, B, that she had been sexually and racially harassed and that a colleague had put spyware on her mobile phone.
A is a migrant worker. Following her complaint, the company asked if she wanted to work while it carried out an investigation or whether she would prefer to be at home. She opted to work. The company’s office is open plan, so it took extra office space to accommodate B and keep the two employees separate.
Within days of the investigation starting, A was trying to gossip about the case with co-workers. She eventually created an emotional scene saying that people were talking about her. She agreed with her manager that perhaps she would be better off at home and practically skipped out of the building.
The next day, realising she might reinterpret events to suit herself, we wrote to her to confirm the agreement that she stay at home. The agreement was never rebutted or questioned by her until the grievance meeting. Note that if you send an employee home without her permission in these circumstances, she can complain of victimisation (less favourable treatment consequent upon a complaint of unlawful discrimination), for which a court may make an award of punitive damages, i.e. damages intended to punish the employer.
An exhaustive investigation followed and even though A complained about almost everyone in the office, there wasn’t a shred of evidence supporting her claim. Some of A’s claims were extreme and caused a great deal of pain among her colleagues.
At the grievance meeting she made great play of being victimised because she was sent home (you can see the value of the letter confirming the agreement) and vehemently disputed all the findings of the grievance investigation, although still without any evidence to support her complaint.
At our suggestion she had asked for her mobile phone to be examined by a forensic expert for indications of spyware. She refused to let us see the report, but apparently it was negative. As the grievance officer I carried out further investigations as a result of the meeting, but all the findings suggested the opposite of A’s allegations.
A appealed. The whole rigmarole was repeated on appeal and again her complaint was dismissed because despite promises of proof, A still had not delivered any proof of spyware. It can be done. The technology is there. But just because it can be done doesn’t necessarily mean that it was and there was certainly no evidence of spying of any type.
The grievance procedure exhausted, we had to think about bringing her back. We agreed the strategy with her to reintegrate her back into the team. Then we broke the news to the team. Within 24 hours, four of the ten employees had resigned, saying that they couldn’t work with her.
The biter bit
It was clear that we couldn’t go back to the original state of affairs. A was requested to come in for a meeting to discuss options. There were none that were workable, she couldn’t come up with any and so she was dismissed for some other substantial reason (SOSR). That meeting was bizarre.
After we dismissed her, she said “I’ll bring a complaint of unfair dismissal”. Treating her to my very best Paddington Bear hard stare, I peered at her over the top of my favourite specs, and told her we would fight it all the way AND ask for damages if she insisted in bringing a frivolous and meretricious case. A flinched a bit. Then she pulled herself together and said, “I resign!”.
You had to hand it to the woman for bare faced cheek. BUT “Too late for that” I said crisply. “You cannot resign as you are no longer an employee of the Company”. She batted her eyelashes at the MD (she is a very pretty woman) but he stuck to my lead. Then she demanded a good reference. Quite incredible. But the MD calmly told her that any reference request would be dealt with based on the facts.
After the pain she had caused to so many employees, there was a certain satisfaction in pointing out to her that her right to remain in the UK was based on having employment. As she no longer had employment she had to return to her country of origin within 28 days. We were under a duty to advise the Borders Agency (in fact I think her manager did it twice, just for good measure!).
We were absolutely convinced that she would bring a claim, but I am relieved that she didn’t. We would have fought it and we would have won, but it’s still a nerve wracking process. Make sure you avoid this type of situation by getting some really practical employment law training.
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