Interesting Employment Tribunal Cases: Witness Statements and Marital Status Discrimination

Witness Statements | Employment Tribunal | HR Solutions

This case law update article provides a digestible account of recent Employment Tribunal outcomes; where you get the background details on the case, the rationale behind the judgements and takeaway learning points.

Tai Tarian v Christie: Was it outside the range of reasonable responses to dismiss someone in reliance on the evidence of an anonymous witness?

Mr Christie was accused of having made a homophobic remark and was taken through a disciplinary process resulting in his summary dismissal for gross misconduct. The person who made the complaint about Mr Christie was interviewed as part of the investigation process but due to suffering from anxiety asked for anonymity. Consequently, the decision-making Managers at the disciplinary hearing stage did not interview the witness and Mr Christie was not told of their identity. Mr Christie lodged a claim for unfair dismissal which was upheld on the basis that a reasonable employer might have kept the identity of the witness anonymous but it was outside a band of reasonable responses not to ensure a fair hearing took place. In particular, the tribunal felt that the acceptance of the witness’s word over Mr Christie’s was unreasonable but that also, given the favourable character references about Mr Christie, including from a gay friend, the tribunal found it highly unlikely that Mr Christie would have made the comments.

However, Tai Tarian appealed the decision and the Employment Appeal Tribunal found that the employment tribunal had in effect substituted its own view when it relied on the fact that Tai Tarian had accepted that Mr Christie was not homophobic and concluded that it could not have believed that he had made the remarks.

The EAT also found the tribunal had not explained why it was unreasonable for Tai Tarian to accept the anonymous witness account. In this case, the witness gave two interviews during the investigation stage, was not invited to the disciplinary hearing and only declined to give evidence at an appeal due to personal circumstances. The tribunal had not properly set out why it was outside the range of reasonable responses to rely on the anonymous witness statement, and the EAT have sent the case back for a rehearing.

This case emphasises that it is not necessarily material to a case if witnesses do not want, for good reason, to be identified. Employers should not only look for facts about an employee’s guilt, but also look for reasons to prove their innocence too, by remaining open minded. If issues with witness statements such as inconsistencies that the dismissed employee has not seen, or considered the reasoning behind the inconsistencies, then employers run the risk of a unfair process as the response will be outside the band of reasonable responses.

Bacon v Advanced Fire Solutions Ltd and Ellis: Less favourable treatment after announcing divorce was marital status discrimination

Mrs Bacon’s husband joined the organisation after Mrs Bacon, but both went on to take up Director roles. In 2017, Mrs Bacon informed Mr Bacon of her wish to separate however wanted to continue in the company after the divorce. At the time, Mrs Bacon took an extended period out of the office to focus on her marriage and children. However, the Managing Director, Mr Graham Ellis, advised the accountants that Mrs Bacon would no longer be working with the organisation and to remove her access to the company systems. She was also removed as a signatory on the account. However, during marriage counselling, Mr Bacon then went on to inform her, that she could return to work when she was ready and in the following month, she was reinstated as a Director.

However, two weeks later Mrs Bacon informed her husband that she wanted to proceed with the divorce and the following day, her role, was advertised and she was removed from the position as director and her name was subsequently taken off the list at Companies house.

She was then later subjected to an investigation into the misuse of company equipment, although no specific allegations, and both Mr Ellis and Mr Bacon reported her to the police. Mrs Bacon went on to raise a grievance in relation to harassment and victimisation in light of her suspension and being reported to the police. She was then later dismissed for alleged IT misuse.

Mrs Bacon brought claims of unfair dismissal and direct discrimination on sex, marriage, and civil partnership. The tribunal unanimously concluded that the Managing Director, Mr Ellis, had distanced himself from Mrs Bacon following her separation and that he was complicit with Mr Bacon in urging the police investigate Mrs Bacon’s IT usage. They also found that Mr Ellis believed everything that he was told by Mr Bacon and that Mr Bacon was pulling the strings.

The tribunal found that Mrs Bacon was fired from her role as director, after her divorce from another employee and had been a victim of marital discrimination.

This case is a reminder of the importance of having a relationship at work policy to make sure those members of staff who are in relationships behave in an appropriate and professional manner during and after a relationship ends.

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