In the case of Martin v Mansfield Pollard & Co Ltd ET1802627/2020 the Employment Tribunal held that an insensitive comment regarding the death of a man in a pool constituted sexual orientation harassment.
The facts in Martin v Mansfield Pollard & Co Ltd
Mr D Martin (the “Claimant”) commenced employment with Mansfield Pollard & Co Ltd (the “Respondent”) as an estimating team leader on 3 February 2020 (initially recruited via an agency following face-to-face and telephone interviews).
The Claimant had been initially recruited in January 2020 (via a recruitment agency) as an estimating team leader in its pre-sales department, following a telephone call and face-to-face interview. The Claimant was employed to take over part of Victoria Eades’ role in this respect; she worked for the Respondent’s head of sales and became the Claimant’s line manager. The Claimant and Respondent understood that it would take the Claimant between 3 and 6 months for him to understand the Respondent’s business, procedures and systems and the Claimant stated that he intended to “hit the ground running” in this respect.
The Claimant’s first week comprised a timetabled induction period where the Respondent provided what was described to be an “overview” of its business via a number of sessions. Friday that week was allocated for the Claimant to hold informal meetings with the 6 members of his team. The Claimant attended the induction sessions along with another new starter, a Business Development Manager (BDM) who had worked for the Respondent previously. During his first week of employment, the Claimant disclosed to to the new BDM that he was homosexual as he had spent some time working with him; he did the same during an induction session with the Respondent’s quality control manager. During a later session, the Respondent’s marketing manager told the Claimant that “something was being said” about him, but that he was unaware of the details.
On Thursday 6 February 2020, Victoria Eades gave the Claimant a congratulations card, with the message: “Great start! I look forward to seeing your impact on the team very soon!” She expected the Claimant to start to make an impact on his team sooner rather than later and expected him to bond with his team and show leadership qualities from the start.
On Friday 7 February 2020, the Claimant held informal meetings with the majority of his team. During the early afternoon, he was working at his desk when he heard loud laughter emanating from the other end of the open-plan office, next to the business unit manager and quality control manager’s desks. After this he then heard the head of projects repeat a comment made by another employee to the effect that the young man who had drowned in Michael Barrymore’s swimming pool had done so “because he had a bum full of water”. The laughter went on for some time – the Claimant was horrified and offended by that comment and the following laughter.
Subsequent to this incident the Claimant tasked a member of his team sitting in front of him to confirm what had been said – the estimator repeated the comment, apparently “unperturbed”. Ms Eades, hearing this, jumped out of her chair and went down the far end of the office, where “she ushered several people” into a meeting room. They remained in the room for a brief amount of time, after which “she quietly glided back to her desk”.
The Claimant met with Ms Eades later on 7 February 2020 to share his thoughts, feelings and views on his first week in employment. He did not want to discuss the incident that had occurred earlier that day, being concerned not to jeopardise his position at the business. At this meeting Mrs Eades also told the Claimant he needed to prepare for second interviews for an estimator vacancy due to take place on the following Monday and Tuesday.
The Claimant had explained during his own recruitment process that he had only limited experience of interviewing (namely, cleaning staff as a facilities manager), reminding Ms Eades of this as he understood that he was to lead the second interview. She advised him that if he was worried about the estimator interviews, he should “go online, educate [him]self and get some guidance”.
The Claimant had prepared a list of interview questions over the weekend, which Ms Eades reviewed. She told the Claimant that they were “OK”. He was given copies of the candidates’ CVs, but not a job description for the role or any notes from the first interviews. The Claimant, Ms Eades and the HR manager interviewed the first candidate that same day. The Claimant also discussed interviewing technique with the HR manager for advice and tips.
On 11 February 2020 the Respondent agreed to a request from the Claimant to change his working hours to take effect from Monday 17 February 2020. Also on this day the Claimant received a call from the BDM which included reference to “personal matters” which he was concerned was another “test” on his performance. On that morning the Claimant had to interview another estimate candidate alongside the HR manager. He felt that Ms Eades and the HR manager had already decided who should be recruited after the first interviews although this was denied by the Respondent.
On 11 February 2020 the Claimant failed to attend the quality control training session with his team, his reason being to spend more time getting up to speed with managing the sales inbox; a week before he had attended a quality control session and felt it more important to spend the time preparing for the second estimator interview. Ms Eades was disappointed that the Claimant had failed to attend the quality control session (and, she felt, an opportunity for him to build a relationship with his team). She discussed her concerns with the HR manager, concerned that the Claimant was being overwhelmed during the first week and was now refusing to follow instructions or guidance. Ms Eades had expected the Claimant to pick up the work more quickly, and to have bonded better with his team. She was scared he would compromise the confidence of the team. The managing director shared this view stating the company needed to “cut [its] losses now” in relation to the Claimant.
On 12 February 2020 the Claimant, shortly after arriving for work, was called into a meeting and told the Respondent did not have time to train him, that he was not engaging with his team, and that he was not meeting expectations. The Claimant felt unprepared to respond to these comments, and the HR manager proceeded to confirm that the Claimant’s employment would terminate that day (12 February 2020) with the reason being “you have not met the required expectation for the role”.
On 14 February 2020 the Claimant sent an email to the HR manager on the basis that he wished to appeal his “unfair dismissal” on the following grounds:
- That it was absurd to suggest that he was not engaging with his team after two days’ working (the first week being an induction);
- That he had agreed to work additional hours to become more proficient in the role;
- That a grossly inappropriate comment had been made on 07/02/20 followed by several male employees laughing disruptively loudly, and that he believed that an underlying homophobic environment existed
The Respondent treated the Claimant’s email as a grievance on the basis he had insufficient service to argue unfair dismissal. A fact-finding meeting was arranged off-site on 27 February 2020 chaired by the Respondent’s finance director at the time.
The Respondent rejected the Claimant’s grievance on the majority of the allegations but did accept the incident on 7 February 2020 had been “wholly unacceptable and in direct conflict with the core values” of the Respondent. However, the Respondent found that this incident had been dealt with “swiftly” by Ms Eades and appropriate action had been taken “on the back of [the finance director’s] investigation into the incident, including instigating formal disciplinary proceedings”.
On 6 April 2020 the Claimant sent an email appealing the grievance outcome, mainly on the basis that the timescales discussed at interview in terms of becoming “fully conversant” with his role had been disregarded and that no-one should be expected to work in an environment in which discriminatory comments are made. The Respondent via letter dated 9 April 2020 refusing to progress his appeal on the basis that no new evidence had been submitted.
The Claimant subsequently brought a claim in the Employment Tribunal for:
- Direct sexual orientation discrimination (under section 13 of the Equality Act 2010)
- Sexual orientation-related harassment (under section 26 of the Equality Act 2010)
The decision of the Employment Tribunal
The Employment Tribunal held the following in relation to the Claimant’s claims:
Sexual orientation-relation harassment
The Respondent had conceded that the Claimant’s complaint of harassment based on the incident on 7 February 2020 should succeed and a judgment by consent was made on that basis (with a subsequent remedy hearing arranged)
Direct sexual orientation discrimination
The Claimant failed in this head of claim as, although the decision to dismiss the Claimant was in close proximity to the incident of harassment, the Employment Tribunal was not persuaded that the two incidents were, on the balance of probabilities, related.
Our lawyers’ views on the case
Mel Chin, a Chartered Legal Executive at Redmans, commented as follows on the case: “Employers should be careful to cultivate workplace environments that are accommodating and non-discriminatory – a failure to do this can mean, as in this case, that successful harassment claims are subsequently brought in the Employment Tribunal”.
The decision of the Employment Tribunal in Mr D Martin v Mansfield Pollard & Co Ltd – ET1802627/2020 can be found here.