Mind Your Language (again): more workplace pitfalls
Posted on 5th April 2024 at 13:30
“Sticks and stones may break my bones – but words will deeply offend me, and that’s much worse”. Has the time honoured proverb been rewritten on the quiet? Let’s take a look at a couple of recent tribunal decisions that may throw some light.
First up, from Hinds v Mitie, the words that caught the newspaper headline were “very emotional and tearful” and “hormonal”. The former phrase was in an internal email not seen by Mrs Hinds at the time. But there was a massive red flag to which her manager paid little regard. She was pregnant and about to start maternity leave. It was perhaps not surprising that the tribunal described this as dismissive and belittling. The latter term was evidently not used against Mrs Hinds, but featured in the judgment when the tribunal criticised her manager for “stereotyping [her] as an emotional, hormonal, pregnant woman”.
The manager’s evident lack of enthusiasm for supporting Mrs Hinds following her return to work was a key factor in the tribunal’s decision that she was constructively dismissed following her return to work, as well as a victim of sex discrimination. The nine day hearing led to a reserved judgment, with the award remaining to be determined.
What about “fit”? It would be futile to deny that a term once linked solely to physical health is now laden with sexual innuendo, or indeed that “comments that might have been prevalent and acceptable in a workplace 30 or 40 years ago are no longer justifiable or tolerated”. Thus spoke the employment judge in Papashvili v Belvue School, dealing with a claim of unfair dismissal and sexual harassment.
Now for the twists. The victim was a male teaching assistant. The perpetrator was the female head teacher, evidently a fair number of years older than him. And the consistent theme of the seven comments in question, including the offending adjective, related (if squeamish, avert your eyes now) to how the victim looked in Speedos.
Overall, this eye catching issue was a comparatively small part of a claim that did not deliver a result that Mr Papashvili had hoped for. His contributory conduct, involving unauthorised absence, profound dishonesty and deliberate creation of misleading evidence, saw his unfair dismissal award reduced by 70%. The sexual harassment claim, once the lack of any contemporaneous complaint on his part or any bystander’s part had been evaluated, only brought him a token “lower Vento” award of £2,500.
From the employers’ perspective, with Mrs Hinds’ victory having been substantive and Mr Papashvili’s somewhat Pyrrhic, both of them incurred the time and cost of lengthy tribunal hearings against unrepresented but determined opponents. Each could have handled the events preceding dismissal in a more sensible manner. Whether an apology for and retraction of the hurtful comments at the time might have spared them the proceedings is debatable. With hindsight, timely legal advice may have gone a long way.
Are you up against a grievance based upon offence having been taken, rightly or wrongly, at written or spoken comments? Are there any special circumstances that ought to be taken into account? We may be able to help you to avoid the molehill becoming a mountain. Get in touch. Contact David Cooper on 0121 325 5402 or via dmc@coxcooper.co.uk .
Tagged as: constructive dismissal, contributory fault, grievances, maternity leave, sex discrimination, sexual harassment, unfair dismissal
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