On this occasion, not “Who Moved My Cheese?”, the parable about adaptation to change. Instead, “Who Took My Mug?”, arguably more of a parody of the modern workplace than a parable.
Adeel Habib joined Curry’s in January 2023, in credit support. It was understood in the workplace was that mugs were communal if left in the kitchen. Having not washed his personal mug and taken it back to his desk, Mr Habib discovered it was missing from the kitchen. He became upset. A colleague offered to help him go round the office and ask after it. In the tribunal’s words in Habib v Curry’s Group, he “probably did give his colleagues reason to believe that he viewed the loss of the mug as stealing”, a likely cause of resentment towards him. The fate of the mug remained unknown.
Having been dismissed after less than three months’ service, for “failing probation”, Mr Habib claimed unfair dismissal, race discrimination, failure to make reasonable adjustments, harassment on the grounds of sex, and breach of contract.
Unfair dismissal quickly fell by the wayside because Mr Habib lacked qualifying service. The race discrimination claim, having been based upon the “mug related resentment” and Curry’s refusal to allow him to take 5 weeks’ worth of annual leave all at once, soon followed – neither had anything to do with race or nationality, and neither involved less favourable treatment. The reasonable adjustments claim failed in turn, there being no evidence that any provision, criterion or practice of Curry’s placed Mr Habib at a substantial disadvantage because of his diabetes. As to harassment, it was simply determined as a matter of fact that a female colleague neither rubbed her bosom against him, nor made inappropriate comments to him of a sexual nature. The accompanying suggestion that a plastic “Juice Burst” drink bottle she left on his desk had some sexual connotation was considered “absurd”.
And yet Mr Habib won one little victory – or did he? His employment contract expressly stated “probation: not applicable”, thereby entrenching a 4 week notice period. Despite Curry’s attempts to argue that a probation period with only 1 week’s notice had been accepted by conduct or by custom and practice, the tribunal upheld the strict letter of the contract, and awarded him £1,209.64 representing 3 weeks’ notice pay.
However, having persisted with discrimination claims that had earlier led to a tribunal deposit order against him, Mr Habib forfeited the deposit. The judgment did not confirm how much this was. Possibly enough to make the victory somewhat Pyrrhic.
Were there any lessons to be learned, other than not to leave personal mugs in a communal workplace kitchen? The most obvious one: not to be careless or lenient in eliminating probation periods from new contracts. Curry’s oversight, combined with its determination to argue that probation still applied rather than concede that it did not, may have deprived it of the chance to seek a costs order. Having been left to pick up the time and costs of a 5 day trial, and two preliminary hearings, Curry’s victory on the bulk of the contested issues may have been equally Pyrrhic, even with all due regard for Mr Habib’s apparent tenacity.
Are you in need of advice on the contents and the issuing of new employment contracts? Or concerned about how far to rely on probation periods, an issue likely to become all the more relevant when the “Rayner reforms” come back from the House of Lords? We can help. Contact David Cooper on 0121 325 5402 or via dmc@coxcooper.co.uk .
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