In the case of Martin v Devonshire Solicitors UKEAT/0086/10/DA the Employment Appeal Tribunal approached the question of whether a dismissal had been motivated by a complaint of discrimination by asking the question: “what is the reason for the act complained of?”. The EAT concluded in this case that the reason for the claimant’s dismissal had been the manner of her complaints, rather than the nature of the complaint, and that the Tribunal had been correct to find against the claimant.
The facts in Martin v Devonshire Solicitors
Mrs Martin, a legal secretary at a firm of solicitors who had a job share, made allegations that two of the partners at the firm had made derogatory comments about her relating to a previous Employment Tribunal case that she had brought against another law firm. She also made allegations that she was being denied job opportunities at the firm.
Mrs Martin’s grievances were investigated and it was found that the two partners had not made the derogatory remarks about her; disciplinary proceedings were therefore commenced against Mrs Martin on allegations that she had falsified the contents of her grievance against the partners. However, the disciplinary process against Mrs Martin was subsequently discontinued as Devonshires obtained a medical report from an occupational health consultant which stated that Mrs Martin had a history of ill health. This report was also supported by the report of a consultant psychiatrist, who concluded that Mrs Martin had experienced a long history of mental illness, that her allegations against the partners might have been caused by her mental illness, and that it was likely that her mental illness would recur in the future.
Although the disciplinary proceedings against Mrs Martin were discontinued on the strength of the medical reports, she was subsequently dismissed in July 2008 from her employment on allegations that the bond of trust and confidence between her and her employer had broken down as a result of the complaints that she had made against the partners.
After being dismissed from her employment Mrs Martin brought Employment Tribunal claims for victimisation and unfair dismissal. These claims were dismissed by the London Central Employment Tribunal as the Tribunal found her dismissal fair and, further, that the reason for her dismissal was her continuing mental ill health and risk of further disruptive behaviour by Mrs Martin (and not her complaint per se). Mrs Martin appealed the Tribunal’s decision to the Employment Appeal Tribunal.
The Employment Appeal Tribunal, chaired by Underhill J (as he was then), upheld the Employment Tribunal’s decision as it found that the reason for Mrs Martin’s dismissal was not wholly or in substantial part her complaint that she had been victimised; the EAT found instead that the Tribunal had been entitled to find that the reason for her dismissal was her conduct at work and the manner in which she had complained to the firm, and that the reason for her dismissal could be “properly treated as separable”. Mrs Martin’s appeal was therefore dismissed.
What does this case mean for me?
If you are an employee with a victimisation claim, then you must carefully analyse your claim to determine whether there is a reason for your dismissal (or detriment, as relevant) which is “properly separable” from the complaint itself – if so, then the other side may have a strong defence to your claim.
If you are an employer, then you must investigate any grievances reasonably, thoroughly, and impartially (and produce outcomes which are equally as reasonable, thorough, and impartial). If an Employment Tribunal claim is made against you then you should carefully analyse the claim to see whether there is a “reason for” defence available to you.
What effect has this case had?
This case has afforded (along with a number of other similar cases relating to discrimination and whistleblowing) employers the opportunity to argue that an employee was not subjected to a detriment or dismissed because of a complaint but, alternatively, because of the manner in which that complaint was made (or another relevant reason not relevant to the complaint).
The transcript of Martin v Devonshire Solicitors UKEAT/0086/10/DA can be found here.