Cruel & Unusual Punishment? When disciplinary sanctions go too far
Posted on 14th September 2023 at 17:18
In one of his nineties TV stand up comedy routines, Jasper Carrott took aim at driving offences. “Mind you, you’ve got to be mental to do that these days. Do you know about the latest proposals? I’ll tell you. If you’re caught, you’ll get a thousand pound fine, you’ll have to take your test again, and up to ten years in prison. Can you believe that – having to take your test again?”
We could just imagine Birmingham’s best known comedian finding another target for a similar attack 30 years ago. “I had a flick through a workplace handbook the other day. The things that could happen to you if you step out of line – dismissal, warnings, suspension, being sent on equality and diversity training courses...Equality and diversity training courses? Nooooo! Sack me now! Pleeease…”
Time has of course marched on. But could anyone ever have thought that an employee acquitted of a harassment allegation might then find himself ordered to take such a course, specifically focused on bullying and harassment?
This happened to Dr Oleg Iourin, an Oxford University academic. An “incident” in January 2016 led to a female colleague’s grievance three months later. In October 2016, the grievance investigator recommended against upholding the allegations. The committee’s formal decision to that effect followed in April 2017. A year later, in April 2018, the complainant’s appeal was upheld in part, on the grounds that the conduct was unwanted. The appeal committee still confirmed that there was no finding of harassment or sexual harassment.
However, Dr Iourin’s departmental head then told Dr Iourin that he had to attend such training. An objection fell on stony ground. Having already initiated a tribunal claim on related matters, Dr Iourin amended his claim to add this issue in 2019. He claimed direct sex discrimination. He argued that the training order was not justified by the grievance outcome, was humiliating and insulting, and would not have been imposed on a female employee.
The tribunal hearing lasted 7 days. There were 11 allegations. By then it was February 2020. Dr Iourin lost on every count. He initiated an appeal. The Employment Appeal Tribunal decided that the tribunal had made a material error of law in not properly noting that the grievance committee acquitted Dr Iourin of those allegations. This takes us up to August 2023. Whether the order to undertake the unjustified, humiliating and insulting training (as Dr Iourin had it) amounted to direct sex discrimination, on the basis that a female employee would not have been so ordered, will be a matter for another tribunal.
The EAT ended by encouraging the parties to settle their differences. After almost 8 years of ill will arising from the order to attend the training, to say nothing of the time and resources then consumed in arguing about it, this plea would hardly have been surprising. Timely advice may have spared much if not most of this.
Are you on the wrong end of an unusual and unexpected disciplinary sanction? Or have you imposed one that your employee is not prepared to take lying down? Or is there still time to step back from the brink? Get in touch. Contact David Cooper on 0121 325 542 or via dmc@coxcooper.co.uk .
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